Citation Nr: 1335248 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 04-25 393 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for major depression with panic disorder, agoraphobia, and posttraumatic stress disorder (PTSD), rated as 30 percent disabling from August 9, 2002, 50 percent disabling from October 5, 2007, and 70 percent disabling from November 10, 2008. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to February 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction rests with the RO in St. Petersburg, Florida, from which the appeal was certified. In a rating decision dated in April 2005, the RO granted an increased rating of 30 percent for the Veteran's service-connected major depression with panic disorder, agoraphobia, and PTSD, effective August 9, 2002, and in a November 2007 rating decision, the RO granted an increased evaluation of 50 percent for major depression with panic disorder, agoraphobia, and PTSD, effective October 5, 2007. In addition, a September 2010 rating decision granted an increased rating of 70 percent for the Veteran's major depression with panic disorder, agoraphobia, and PTSD, effective November 10, 2008. As these ratings are not the maximum ratings available for the service-connected disability, the claim remains in appellate status, and the Board has re-characterized the issue to include staged ratings as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. From August 9, 2002 to October 4, 2007, the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested by depression, anxiety, panic attacks, nightmares, flashbacks, sleep impairment, an exaggerated startle response, suicidal ideations, impaired concentration, avoidance, hypervigilance, irritability, and obsessive compulsivity, productive of functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity. 2. From October 5, 2007 to November 9, 2008, the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested by depression, anxiety, irritability, sleep impairment, flashbacks, nightmares, impaired concentration, avoidance, chronic social isolation, panic attacks, obsessive/ritualistic behavior, productive of functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas. 3. On and after November 10, 2008, the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested by depression, anxiety, irritability, hypervigilance, panic attacks once per week, an exaggerated startle response, feelings of isolation, intrusive thoughts, flashbacks, nightmares, poor judgment and insight, irritability, and obsessive/ritualistic behavior, productive of functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. From August 9, 2002 to October 4, 2007, the criteria for an evaluation of 50 percent for major depression with panic disorder, agoraphobia, and PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013). 2. From October 5, 2007 to November 9, 2008, the criteria for an evaluation of 70 percent for major depression with panic disorder, agoraphobia, and PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130. 3. On and after November 10, 2008, the criteria for an evaluation in excess of 70 percent for major depression with panic disorder, agoraphobia, and PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her 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 VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In March 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. With respect to the issues decided herein, in VA correspondence dated in November 2002, August 2005, and March 2006, the Veteran was informed of what evidence was required to substantiate the claim, of her and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating and effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision of the Agency of Original Jurisdiction on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). While complete VCAA notice, specifically notice of the Dingess/Hartman elements of the claims was provided after the initial adjudication, this timing deficiency was remedied by the issuance of VCAA notice followed by re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The claim was re-adjudicated in subsequent Supplemental Statements of the Case. Therefore, any timing deficiency has been remedied. All the VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Further, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," a June 2004 Statement of the Case set forth the relevant diagnostic codes for rating the disability at issue and included a description of the rating formulas for the current evaluations and for all other higher evaluations. The Veteran was thus informed of what was needed not only to achieve the next higher schedular rating but also what was needed to obtain all schedular ratings above that assigned. Therefore, the Board finds the Veteran has been informed of what was necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553. Duty to Assist With respect to the issues decided herein, the Veteran's claims file contains service treatment records, VA examination reports, VA treatment records, and written statements submitted by the Veteran and her representative. In June 2006, the Board remanded the Veteran's claim to schedule her for a Travel Board hearing at the local RO before a Veterans Law Judge. Following the June 2006 remand, the record demonstrates the Veteran was scheduled for a Travel Board hearing. However, the Veteran indicated in an October 2006 letter that she had missed her hearing because she had moved to another state. The Board, finding good cause had been presented, remanded the Veteran's claim in January 2007 to discern whether she wished to present testimony at a personal hearing. No response to the request was received. In July 2012, the Board remanded the Veteran's claim for additional development. Specifically, the Board instructed that the RO provide the Veteran a medical release form and request that she execute it to authorize VA to obtain medical treatment records from her psychiatrist at the Fort Lauderdale Vet Center, and then, if received, obtain such records. The evidence includes records from the Fort Lauderdale Vet Center. In addition, the Veteran underwent multiple VA examinations in connection with her increased rating claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds the VA examinations, considered together, adequate for purposes of rating the Veteran's claim during the periods on appeal. First, they were predicated on a review of the Veteran's claims file, consideration of the Veteran's statements, and the results of adequate and complete mental examinations. Additionally, clinical findings pertinent to the applicable criteria for rating the Veteran's disability were provided. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Furthermore, the reports provided findings relevant to the Veteran's functional impairment in daily life. Martinak v. Nicholson, 1 Vet. App. 447 (2007). Accordingly, the Board finds the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher 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 (2013). Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2013). Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for increased rating claims when the factual findings show distinct time periods where the service-connected disabilities exhibit symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2013). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV), a global assessment of functioning (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV, American Psychiatric Association (1994), pp. 46-47; 38 C.F.R. §§ 4.125(a), 4.130 (2013). A GAF score of 11-20 indicates some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or some gross impairment in communication (e.g., largely incoherent or mute). A GAF 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). A GAF 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 GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideations, 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 GAF score of 51-60 represents 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). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. The Veteran's service-connected major depression with panic disorder, agoraphobia, and PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides: A 30 percent disability rating is warranted when there is 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 (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when the Veteran experiences 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. A 70 percent disability rating is warranted when the Veteran experiences 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 ideations; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. From August 9, 2002 to October 4, 2007 From August 9, 2002 to October 4, 2007, the Veteran's service-connected major depression with panic disorder, agoraphobia, and PTSD is currently rated as 30 percent disabling. To warrant a higher evaluation, the evidence must show functional impairment comparable to occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130. VA treatment records dated in August 2002 reflect diagnoses of PTSD secondary to sexual trauma and GAF scores of 32 and 40. VA mental health treatment records dated in September 2002 demonstrate GAF scores of 32, 38, and 40. An October 2002 VA mental health treatment record reflects diagnoses of PTSD and military sexual trauma (MST), with a GAF score of 40, and a November 2002 VA treatment record demonstrates a GAF score of 30. A December 2002 VA treatment record reflects a GAF score of 55. A January 2003 VA treatment record shows a GAF score of 38, and a March 2003 record reflects a GAF score of 45. In April 2003, the Veteran underwent VA examination in connection with her claim. The Veteran reported that her symptoms were affecting her ability to work. She stated that she had a few really close friends and that her attitude toward social interactions was okay. She reported that her social support included her husband, close friends, half-sisters, and sister, with limited contact with her mother and father, and she stated that she liked to read, go to Alcoholic Anonymous (AA) meetings, look at art, and study genealogy. The Veteran reported panic attacks, one nightmare monthly, flashbacks four to five times per year, trouble sleeping, anger, and guilt. The VA examiner found the frequency, severity, and duration of the Veteran's psychiatric symptoms, which had affected her social, behavioral, cognitive, affective, and/or somatic changes and work impairment over the past 12-month period, were severe. The Veteran's affect was euthymic with some tearfulness, and her voice volume and eye contact were good. Her insight and judgment were good. The VA examiner found the Veteran's Symptom Checklist results revealed a profile consistent with mild PTSD symptoms, mild depression, moderate-to-severe anxiety, no psychosis, and mild cognitive complaints. The Veteran denied auditory and visual hallucinations and suicidal, paranoid, and homicidal ideations. The Veteran reported overarousal, being easily startled, avoidance/numbing, and symptoms of re-experiencing. The VA examiner diagnosed dysthymia; PTSD, chronic; attention deficit hyperactivity disorder, inattentive type, provision; major depression, recurrent, partial remission; panic disorder with mild agoraphobia, partial remission; eating disorder, not otherwise specified; alcohol dependence, in remission; and polysubstance dependence, in remission, and assigned a GAF score of 49. The VA examiner opined that there were indications of behavioral control problems, subjective unhappiness, employment difficulties, and family dysfunction. The VA examiner reported that the changes in the Veteran's functioning included self-care, family role functions, physical health, social/interpersonal relationships, recreation/leisure pursuits, and work performance. VA treatment records in July 2003 reflect GAF scores of 45, 66, and 38. A September 2003 record reflects a GAF score of 45. In December 2003, the Veteran reported terrible flashbacks and a panic attack in the past week. She had been able to go to school. An additional December 2003 VA treatment record shows the Veteran reported fleeting suicidal thoughts and a couple of crying spells. She denied visual and auditory hallucinations. It was noted that the Veteran was currently enrolled in college. A January 2004 treatment record indicates the Veteran was looking forward to completing her college degree in May 2004. A May 2004 VA mental health note reflects a GAF score of 70. In June 2004, the Veteran's representative submitted a written statement in support of her claim. The representative asserted that the Veteran's condition of depression and panic disorder had clearly affected her memory and attention to detail and that her ability to continue to care for herself alone was also impaired because of her combined physical and mental health issues. An October 2004 VA psychiatry consultation note shows the Veteran reported becoming depressed and suicidal a few months prior. She stated that she was hospitalized at Mercy Hospital in Toledo, Ohio for four days in June 2004 for symptoms of bipolar disorder and suicidal ideations. The record indicates the Veteran was neatly dressed. She had mild agitation and was anxious and guarded, with a mildly depressed affect. Her insight was fair and her judgment was intact. The VA examiner assigned a GAF score of 48. An additional October 2004 VA treatment record shows the Veteran reported symptoms of depression, trouble concentrating, trouble sleeping, feelings of worthlessness/helplessness, low energy, hypomanic periods, panic attacks, nightmares and flashbacks, avoidance, hypervigilance, and being easily startled. She denied any suicidal thoughts at that time and denied homicidal ideations. The VA physician assigned a GAF score of 60. A November 2004 VA treatment record reflects a GAF score of 65. The Veteran complained of sleeping problems and three panic attacks in the past two weeks. She denied suicidal and homicidal ideations and delusions. Her insight and judgment were fair. The Veteran also reported that she was working part-time and continued to search for a full-time job. In February 2005, the Veteran reported trouble sleeping, panic attacks, and some forgetfulness. She also described symptoms of avoidance, nightmares two times per week, and intrusive thoughts that triggered panic attacks. She also reported some need for order, counting and washing compulsively, and looking for patterns. She was alert, attentive, and oriented, with appropriate grooming, had normal speech, and her language was intact. Her mood was dysphoric, and her thought processes were normal and coherent. She denied hallucinations, illusions, delusions, and obsessions. Her insight and judgment were good. The VA clinical nurse specialist assigned a GAF score of 58. The Veteran underwent additional VA examination in March 2005. The Veteran was neatly dressed, groomed, and sociable. Her thoughts were logical and coherent. She reported that there were some days where she felt so depressed that she wanted to stay in bed and that she did not enjoy things in life. She also reported a low energy level, increased irritability, and decreased concentration. The Veteran denied any active suicidal thoughts and reported symptoms of mania and periods of panic three to four times per month. She stated that she had nightmares of military sexual trauma three to four times per week and severe flashbacks three to four times per month. The VA examiner found the Veteran's profile revealed depression at a moderately elevated level and that there was considerable somatizing. The VA examiner diagnosed recurrent major depression; panic disorder with agoraphobia; eating disorder, not otherwise specified; and anxiety disorder, not otherwise specified (borderline PTSD). The VA examiner assigned a GAF score of 60 based on the service-connected conditions alone. In April 2005, the Veteran reported symptoms of poor sleep, some low energy, good motivation, okay memory and concentration, and decreased isolation. She denied all other depressive symptoms, including suicidal and homicidal ideations. She continued to have nightmares three to four times per week, intrusive thoughts every other day, avoidance of things that reminded her of the trauma, and hypervigilance. The Veteran also reported panic attacks two to three times per week. She was well-groomed, with some amount of circumstantial thought form and racing thoughts, and she had a good mood with congruent affect. She had no hallucinations or delusions, and her judgment and insight were fair. In December 2005, the Veteran was casually dressed, her mood was dysphoric, and her affect was tense and anxious. Her thoughts were obsessional and poorly organized, there was no evidence of delusions, and she denied hallucinations. The Veteran's concentration was poor, her memory was fair, and her judgment and insight were poor. The VA clinical nurse specialist assigned a GAF score of 47. A June 2006 VA treatment record indicates the Veteran continued to have difficulty with mood regulation, anxiety, memories, flashbacks, and obsessive compulsive components. In September 2006, the Veteran was anxious, and her affect was congruent with her mood. She was well-groomed, and she denied suicidal and homicidal ideations. The Veteran also denied auditory, visual, tactile, and olfactory hallucinations, and there was no evidence of overt paranoid ideations or other delusional thought processes. The VA physician assigned a GAF score of 55. Given the above record, the Board finds the Veteran's major depression with panic disorder, agoraphobia, and PTSD was productive of functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity from August 9, 2002 to October 4, 2007. Initially, the Board notes that the Veteran experienced symptoms that are not listed in the rating criteria, and as a result, the Board has considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with reduced reliability and productivity. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, the evidence demonstrates that the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested specifically by depression, anxiety, panic attacks, nightmares, flashbacks, sleep impairment, an exaggerated startle response, impaired concentration, feelings of worthlessness, avoidance, hypervigilance, irritability, and obsessive compulsivity. In April 2003, the VA examiner reported that the changes in the Veteran's functioning due to her psychiatric symptoms included self-care, family role functions, physical health, social/interpersonal relationships, recreation/leisure pursuits, and work performance. From August 9, 2002 to October 4, 2007, VA physicians assigned GAF scores ranging from 30 to 70, which indicate major impairment in several areas, to some difficulty in social, occupational, or school functioning, but generally functioning pretty well. Here, the Board finds the Veteran's symptoms more closely align with the higher range of GAF scores assigned. While there were times wherein the Veteran's GAF score improved or worsened, the manifested symptoms remained largely constant. In addition, in April 2003, the Veteran reported that her social support included her husband, close friends, half-sisters, and sister, and she stated that she liked to read, go to AA meetings, look at art, and study genealogy. Although the Veteran stated that her symptoms were affecting her ability to work, it was noted that the Veteran was currently enrolled in college. In addition, later records reveal that the Veteran completed college, was working part-time, and continued to search for a full-time job. The Board notes that the evidence indicates the Veteran was hospitalized on one occasion in 2004; however, the treatment records reflect that this was primarily due to symptoms in connection with a possible bipolar disorder. In addition, VA treatment records dated in the months following the Veteran's hospitalization reflect GAF scores of 60 and 65, indicating the Veteran's symptoms rapidly improved over a few months' time. As such, the Board concludes that the evidence as a whole more nearly approximates the criteria for an evaluation of 50 percent for this period. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411; see Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the Board finds that a rating in excess of 50 percent is not warranted for the Veteran's service-connected major depression with panic disorder, agoraphobia, and PTSD from August 9, 2002 to October 4, 2007. The evidence does not show 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; spatial disorientation; or neglect of personal appearance and hygiene. The Board acknowledges the representative's assertions that the Veteran's condition had clearly affected her memory and attention to detail and her ability to continue to care for herself alone. However, in April 2003, the VA examiner found the Veteran's Symptom Checklist results revealed a profile consistent with mild PTSD symptoms, mild depression, moderate-to-severe anxiety, no psychosis, and mild cognitive complaints. In addition, the March 2005 VA examiner found the Veteran's profile revealed depression at a moderately elevated level. Here, the Board affords the VA examiners' opinions greater probative value as the VA examinations were performed specifically for the purpose of determining the severity of the Veteran's symptoms and with explicit consideration of VA rating criteria. For these reasons, the Board finds the criteria for a disability rating of 50 percent, but no more, for major depression with panic disorder, agoraphobia, and PTSD have been met from August 9, 2002 to October 4, 2007. 38 C.F.R. § 4.130. However, because functional impairment comparable to occupational and social impairment with deficiencies in most areas is not established, the preponderance of the evidence is against the assignment of a 70 percent rating. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). October 5, 2007 through November 9, 2008 From October 5, 2007 through November 9, 2008, the Veteran's service-connected major depression with panic disorder, agoraphobia, and PTSD is currently rated as 50 percent disabling. To warrant a higher evaluation, the evidence must show functional impairment comparable to occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130. An October 2007 VA treatment record reflects a GAF score of 65. The Veteran's speech was clear and coherent, her affect was good, her thought processes were organized, and she denied delusions and hallucinations. There was no evidence of suicidal or homicidal ideations, and her insight and judgment were good. In October 2007, the Veteran underwent additional VA examination in connection with her increased rating claim. The Veteran reported a depressed mood four to five times per month, irritability, flashbacks three times per month, nightmares of rape three to four times per month, poor concentration, chronic social isolation, avoidance, and panic attacks four to five times per month. The Veteran was neatly groomed, her speech was unremarkable, her affect was normal, and her mood was anxious and depressed. She had attention disturbance and her thought processes were unremarkable. The Veteran reported that she was hospitalized for suicidal ideations two years prior and denied current suicidal ideations and homicidal ideations. She had no delusions, her judgment and insight were intact, and she reported sleep impairment. She described obsessive/ritualistic behavior, good impulse control, an ability to maintain minimal personal hygiene, and no problems with activities of daily living. The Veteran stated that her psychiatric symptoms, along with other issues, were the reason for her unemployment. The VA examiner assigned a GAF score of 55 and opined that there was not total occupational and social impairment due to mental disorder signs and symptoms. The VA examiner found the Veteran's signs and symptoms resulted in deficiencies in the areas of thinking, family relations, work, and mood, but not judgment. A January 2008 VA treatment record shows the Veteran was well-groomed, alert and oriented, and had good eye contact. Her mood was manic, her speech was clear and coherent, and her thought processes were organized. No delusions were expressed. She denied hallucinations and suicidal and homicidal thoughts, and her insight and judgment were good. The VA physician assigned a GAF score of 50. According to a February 2008 intake from the Vet Center, the Veteran reported a history of panic attacks and a diagnosis of bipolar disorder with hospitalization. The Veteran's appearance was neat, her memory was normal, her judgment was good, and her affect was mild. Her speech was rapid and her motor activity was agitated. There was no evidence of delusions, disorganized thinking, or hallucinations. In May 2008, the Veteran reported having frequent panic attacks. Also in May 2008, the VA examiner who performed the October 2007 VA examination provided an addendum opinion with respect to the relationship between the Veteran's PTSD and other service-connected acquired psychiatric disorders. The VA examiner found the listed diagnoses were separate entities, in that the Veteran's PTSD was not caused by her service-connected conditions; rather it was considered to be related to the reported in-service sexual trauma. Because the conditions co-existed, the VA examiner found it was not possible to separate out any impairment in functioning related to the individual disorders singly. The Veteran also underwent VA examination in May 2008 in connection with her claim of entitlement to a TDIU. The Veteran reported that she had been unemployed for one to two years due to headaches, feet pain, psychiatric symptoms, and an inability to get the desired hours at work. An August 2008 VA treatment record reflects a GAF score of 65. Given the above record, the Board finds the Veteran's major depression with panic disorder, agoraphobia, and PTSD was productive of functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas from October 5, 2007 to November 9, 2008. Here, the evidence demonstrates that the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested specifically by depression, anxiety, irritability, flashbacks, nightmares, poor concentration, avoidance, chronic social isolation, panic attacks, and obsessive/ritualistic behavior. The Board finds probative the October 2007 VA examiner's opinion that the Veteran's signs and symptoms resulted in deficiencies in the areas of thinking, family relations, work, and mood. According to the examiner, the Veteran's thinking was affected by her panic attacks and the resulting need to control her environment, and the affects of her symptoms on her family relations was demonstrated by her three marriages and strained relationships with her two children. The Veteran's depression and anxiety impacted her mood. In addition, the evidence shows the Veteran was unemployed during the period, and the Veteran reported that her unemployment was due to her depression and panic disorder. In addition, VA physicians assigned GAF scores ranging from 50 to 65, which indicate a range of mild symptoms or some difficulty in social and occupational functioning to serious symptoms or any serious impairment in social and occupational functioning. Here, the Board finds the Veteran's symptoms during this period more closely align with the symptoms indicated by the lower range of GAF scores assigned, especially considering the VA examiner's statement showing deficiencies in several areas of functioning. Specifically, the evidence demonstrates that the Veteran reported obsessive/ritualistic behavior, experiencing frequent panic attacks four to five times per month, and the VA examiner found her symptoms resulted in avoidance and chronic social isolation. As such, the Board concludes that the evidence as a whole more nearly approximates the criteria for an evaluation of 70 percent for this period. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411; see Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the Board finds that a rating in excess of 70 percent is not warranted for the Veteran's major depression with panic disorder, agoraphobia, and PTSD from October 5, 2007 to November 9, 2008. 38 C.F.R. § 4.130. The evidence does not reflect grossly inappropriate behavior; persistent delusions or hallucinations; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of closest relatives, own occupation, or own name. Rather, the evidence shows that the Veteran was cleanly groomed, alert and oriented, and her memory was intact. There was no evidence of delusional thinking, hallucinations, suicidal ideations, or homicidal ideations. In addition, the October 2007 VA examiner specifically found the Veteran could perform activities of daily living ability and was able to maintain minimal personal hygiene. Finally, the October 2007 examiner opined that the Veteran's major depression with panic disorder, agoraphobia, and PTSD did not result in total occupational and social impairment. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that an evaluation of 70 percent for major depression with panic disorder, agoraphobia, and PTSD is warranted from October 5, 2007 to November 9, 2008. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On and after November 10, 2008 On and after November 10, 2008, the Veteran's major depression with panic disorder, agoraphobia, and PTSD is currently rated as 70 percent disabling. To warrant a higher disability rating, the evidence must show functional impairment comparable to total occupational and social impairment. 38 C.F.R. § 4.130. In November 2008, the Veteran reported that her feelings of depression were minimal, her motivation was fair, and she had no interest in activities. She reported sleeping well, with occasional nightmares, and denied suicidal ideations. She described symptoms of anxiety, hypervigilance, panic attacks about once per week, an exaggerated startle response, feelings of isolation, intrusive thoughts, and flashbacks. The VA psychiatrist assigned a GAF score of 45. VA treatment records indicate the Veteran was hospitalized from February 26, 2009 to February 28, 2009 for suicidal ideations, bad flashbacks, and a mixed episode of bipolar disorder. In February 2009, the Veteran reported feeling very suicidal for several days and having flashbacks. The Veteran was alert, neatly dressed, her mood was depressed and anxious, and her speech was rapid and coherent. Her thought processes were normal, her thought content was despondent, with no delusions, hallucinations, or referential thinking, and her insight, judgment, and impulse control were poor. The VA nurse practitioner assigned a GAF score of 20. The Veteran was again hospitalized in March 2009 reportedly for a reaction to Seroquel. In April 2009, following her hospitalizations, the Veteran reported feeling better and denied suicidal ideations. She stated that she was feeling anxious and had some racing of thoughts. She had frequent flashbacks and panic attacks and felt irritable and edgy. The VA psychiatrist assigned a GAF score of 40. An additional VA treatment record shows a GAF score of 44. A May 2009 VA treatment record shows the Veteran was alert and oriented, with no looseness of associations. She had racing thoughts, pressured speech, and no flight of ideas. She denied delusions, hallucinations, and suicidal and homicidal ideations. Her memory was intact, and her judgment and insight were poor. In June 2009, a VA social worker assigned a GAF score of 50, and a July 2009 VA treatment record shows a GAF score of 45. The Veteran's mood was stable, and she denied feelings of depression. She reported no recent flashbacks or panic attacks. An August 2009 VA mental health note shows the Veteran was anxious, her affect was congruent, her speech was normal, and her insight and judgment were good. There were no reported suicidal or homicidal ideations, delusions, or hallucinations. VA treatment records dated in March 2010 and May 2010 reflect GAF scores of 50 and 55, respectively. In August 2010, the Veteran was well-groomed, her speech was normal, and her mood was described as a four out of 10. There was no evidence of formal thought disorder, overt paranoia, or delusions, and the Veteran denied auditory and visual hallucinations as well as suicidal and homicidal ideations. The GAF score assigned was 58. In November 2010, the Veteran underwent VA examination. The VA examiner noted that the Veteran's GAF score had improved from a 50 to a 58 over the past year. The Veteran reported a good relationship with her third husband and a strained relationship with her son. She also stated that she was somewhat isolated but had some friends. She also reported that she did get out and do things, such as going to the beach and the bookstore. The Veteran was well-groomed, her eye contact was good, and her speech was within normal limits. Her mood was anxious, her affect was normal, and there was no evidence of formal thought disorder. She denied suicidal and homicidal ideations, paranoia, delusions, and hallucinations. Her insight and judgment were adequate. The Veteran reported a depressed mood four to five times per month; crying spells one to two times per month, and panic attacks four to five times per month. She also reported obsessive/ritualistic behavior and good impulse control. She was able to maintain minimum personal hygiene, and there were no problems with activities of daily living. The VA examiner assigned a GAF score of 57. The Veteran reported that she was unemployed due to her psychiatric symptoms and migraines. The VA examiner opined that there was not total occupational and social impairment due to mental disorder signs and symptoms. The VA examiner found the Veteran's symptoms resulted in deficiencies in the areas of thinking, family relations, work, and mood. The VA examiner opined that the Veteran's service-connected disabilities were less likely than not to preclude her from substantially gainful employment. The opinion was based on the Veteran's reasons for not choosing to seek employment. She reported that she needed to work on herself and that because she could not control her work environment, she experienced panic attacks. In addition, the Veteran indicated she was bringing in enough money from her pension and disability, as well as the fact that there were no jobs available. The VA examiner found that although the Veteran did have moderate impairment in her occupational functioning secondary to her psychiatric diagnoses, she did not appear to be totally occupationally impaired or unemployable. VA treatment records from January 2011 to November 2011 demonstrate GAF scores ranging from 58 to 55. A June 2012 mental health note indicates the Veteran was easily distracted and had a few recent panic attacks, approximately two per week. She reported enjoying being outdoors and going to the beach with her husband and stated that they were now living off of her pension and disability. The Veteran was alert, fully oriented, and dressed casually. Her speech was clear, her motor activity was mildly fidgety, and her mood appeared euthymic to hyperthymic. Her affect was somewhat anxious but congruent with her mood. She denied any suicidal and homicidal thoughts, and her insight and judgment were fair to good. The VA psychiatrist assigned a GAF score of 54. An October 2012 Vet Center progress note shows the Veteran reported having panic attacks three to four times per month. In December 2012, the Veteran reported that she was doing very well and had made a new friend. She also stated that her and her husband were working together to go out and practice her driving. A January 2013 progress note from the Vet Center indicates the Veteran had a panic attack, and in February 2013, the Veteran reported high levels of anxiety. Upon review, the Board concludes that the evidence demonstrates that since November 10, 2008, the manifestations of the Veteran's major depression with panic disorder, agoraphobia, and PTSD were productive of functional impairment comparable to no worse than occupational and social impairment with deficiencies in most areas. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.130, Diagnostic Code 9411. Again, the Board has considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with deficiencies in most areas. See Mauerhan, 16 Vet. App. 436 (2002). In this case, the record demonstrates that since November 10, 2008, the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested by depression, anxiety, hypervigilance, panic attacks once per week, an exaggerated startle response, feelings of isolation, intrusive thoughts, flashbacks, occasional nightmares, poor judgment and insight, irritability, suicidal ideations, and obsessive/ritualistic behavior. The November 2010 VA examiner opined that the Veteran's symptoms resulted in deficiencies in the areas of thinking, family relations, work, and mood. The Veteran also reported that she was unemployed as the result of her psychiatric symptoms and migraines. She stated that she lived a very controlled life. Since November 10, 2008, VA physicians assigned GAF scores ranging from 20 to 58, indicating a range of some danger of hurting self to moderate difficulty in social, occupational, or school functioning. Although the February 2009 VA treatment record reflects a GAF score of 20, the Board notes that this appeared to be an isolated event involving the Veteran's brief hospitalization for suicidal ideations, bad flashbacks, and a mixed episode of bipolar disorder. In comparison, the evidence shows that of the remaining GAF scores assigned since November 10, 2008, a score of 45 was the lowest, and it was assigned prior to the Veteran's hospitalization. Also, the November 2010 VA examiner found it significant that the Veteran's scores had improved from a 50 to a 58 over the past year. Further, the VA examiner specifically opined that the Veteran had moderate impairment in her occupational functioning secondary to her psychiatric diagnoses. As such, the Board concludes that the evidence more nearly approximates the criteria for a 70 percent disability rating since November 10, 2008. 38 C.F.R. §§ 4.7, 4.130 Diagnostic Code 9411. Here, the Board finds that the Veteran does not meet the criteria for a 100 percent disability rating on and after November 10, 2008. The evidence indicates that since November 10, 2008, the Veteran was well-groomed, her speech was coherent, and there was no evidence of formal thought disorder. The Veteran denied delusions, hallucinations, and homicidal ideations. Additionally, she was alert and oriented, her memory was intact, and there were no problems with activities of daily living. The evidence does not demonstrate gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of closest relatives, own occupation, or own name. As a result, the Board finds the Veteran's disability picture more closely approximates occupational and social impairment with deficiencies in most areas, and therefore a disability rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.130. Because total occupational and social impairment has not been established on and after November 10, 2008, the preponderance of the evidence is against the assignment of a 100 percent rating. Therefore, there is no doubt to be resolved, and an evaluation in excess of 70 percent is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. 49. Extraschedular Consideration Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the ratings assigned for the periods on appeal inadequate. The Veteran's service-connected major depression with panic disorder, agoraphobia, and PTSD is evaluated as a psychiatric disability, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.130, Diagnostic Code 9411. During the pendency of the appeal, the Veteran's major depression with panic disorder, agoraphobia, and PTSD was manifested by depression, anxiety, hypervigilance, panic attacks, an exaggerated startle response, social isolation, intrusive thoughts, flashbacks, nightmares, irritability, suicidal ideations, and obsessive/ritualistic behavior. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are contemplated by the evaluations assigned for the periods on appeal. An evaluation in excess of those assigned are provided for certain manifestations of a psychiatric disability, but the medical evidence does not demonstrate that those manifestations are present in this case. Here, the Board finds that the criteria for the evaluations assigned more than reasonably describe the Veteran's disability level and symptomatology during the periods on appeal, and therefore, the schedular evaluation is adequate, and no referral is required. See 38 C.F.R. § 4.130, Diagnostic Code 9411; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). ORDER Entitlement to an evaluation of 50 percent, but no more, for major depression with panic disorder, agoraphobia, and PTSD is granted from August 9, 2002 to October 4, 2007. Entitlement to an evaluation of 70 percent, but no more, for major depression with panic disorder, agoraphobia, and PTSD is granted from October 5, 2007 to November 9, 2008. Entitlement to an evaluation in excess of 70 percent for major depression with panic disorder, agoraphobia, and PTSD, on and after November 10, 2008, is denied. REMAND TDIU It appears that in May 2008, the Veteran underwent VA examination in connection with her claim of entitlement to a TDIU. However, the VA examiner did not provide a medical opinion with respect to whether the Veteran's service-connected disabilities, alone or in combination, prevented her from securing or following a substantially gainful occupation. In addition, although the other VA examinations of record commented upon the effects of some of the Veteran's service-connected disabilities on employment, they did not address the impact of all the service-connected disabilities when considered together. Although the November 2010 VA examiner opined that the Veteran's service-connected disabilities were less likely than not to preclude her from substantially gainful employment, the evidence does not clearly indicate that the VA examiner was considering all of the Veteran's service-connected disabilities in combination. In fact, although the Veteran reported that she was unemployed due to her psychiatric symptoms and migraines, the VA examiner opined that there was not total occupational and social impairment due to mental disorder signs and symptoms. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. Therefore, the Board finds remand is warranted in order to afford the Veteran an additional VA examination with respect to her claim of entitlement to a TDIU. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine whether the Veteran's service-connected disabilities, considered in combination, preclude substantially gainful employment. The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, considered in combination, prevent her from securing or following substantially gainful employment consistent with her education and occupational experience. When offering this opinion, the examiner should not consider the effects of age or any nonservice-connected disability. The VA examiner should note that at present, service connection is in effect for major depression with panic disorder, agoraphobia, and PTSD; migraine headaches; bilateral hearing loss; sinusitis; and eating disorder with purging. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale for the opinion proffered must be provided. 2. Notify the Veteran that it is her responsibility to report for any examination scheduled and to cooperate in the development of her claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. Thereafter, re-adjudicate the Veteran's claim of entitlement to a TDIU. If the benefit sought on appeal remains denied, issue the Veteran and her representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs