Citation Nr: 1336152 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-35 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for generalized anxiety disorder. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction over the Veteran's claims file was later transferred to the St. Petersburg, Florida RO. In September 2011 the Veteran was afforded a Travel Board hearing. A transcript of the testimony offered at this hearing has been associated with the record. The claim was previously before the Board in February 2012. The Board increased the Veteran's initial rating for service connected anxiety from 10 percent to 30 percent. The Board remanded the issue of entitlement to an initial rating in excess of 30 percent, and the issue of entitlement to TDIU for additional development. The issue of entitlement to an effective date earlier than May 4, 2001 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's anxiety disorder is manifested by a flattened affect, panic attacks more than once a week, impaired judgment, disturbances of mood, occasional hallucinations, chronic anxiety, and difficulty in establishing effective work and social relationships. 2. The Veteran does not meet the schedular criteria for a TDIU, nor does the evidence suggest that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected disabilities so as to warrant referral for extra-schedular consideration. CONCLUSIONS OF LAW 1. Entitlement to an initial 50 percent evaluation, and no higher, is warranted for generalized anxiety disorder. U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2013). 2. Entitlement to a TDIU is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, adequate notice was given in March 2004, February 2009, January 2008, and June 2012 from the RO. The June 2012 letter included notice on the information necessary to support a claim for TDIU. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains service treatment records, VA treatment records, and VA examination reports from 2003, 2008, 2009, and 2013. The Board finds that these examinations provide a sufficient basis on which to warrant an informed decision in this appeal. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private clinical records. The claimant was afforded several VA examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the AMC has complied with all remand orders. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). In September 2011, the Veteran testified at a personal hearing regarding his claim for an increased rating for his anxiety disorder. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's statements of worsening symptoms. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). While this hearing did not specifically address the TDIU claim, his statements regarding the severity of his anxiety disorder are pertinent to his TDIU claim. Laws and Regulations Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity." 38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007). Additionally, if a Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then a total rating based on individual unemployability (TDIU) as a result of that disability must be considered. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The appeal in this case arises from a disagreement with the initial rating assigned. Thus, the current appeal period begins with a claim for service connection, which, in this case, is currently May 4, 2001. The general rating criteria used for evaluation of the Veteran's generalized anxiety disorder provides a 100 percent evaluation 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 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. A 70 percent evaluation requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), inability to establish and maintain effective relationships. Id. A 50 percent evaluation is proper for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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, disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 30 percent evaluation is warranted for 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 normal conversations), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events). Id. A 10 percent evaluation is warranted for 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. Id Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Factual Background and Analysis Procedurally, the Veteran filed a claim for posttraumatic stress disorder (PTSD) and anxiety in August 2000. He filed an additional claim for PTSD in March 2001, and a claim for anxiety and depression in April 2001. In a March 2003 rating decision he was denied service connection for PTSD, which he appealed to the Board. In May 2001, the VA received a February 2001 statement from a physician that the Veteran's was being treated for PTSD, which was taken as a claim for PTSD. In December 2007, the Board denied entitlement to service connection for PTSD, and remanded the claim of entitlement to service connection for anxiety and depression. In a May 2008 rating decision, the RO granted entitlement to service connection for an anxiety disorder, and provided an effective date of May 4, 2001 (the date the VA received the February 2001 physician's letter). Early private treatment records from May 1994 noted that the Veteran was "doing better" but that he was still "markedly anxious." He was noted to be more agitated, less controlled and less appropriate. In another May 1994 treatment note, the Veteran was found to no longer suffer from "pressure-machine gun speech." He was also noted to be "much more controlled, appropriate, [and] nontremulous." In March 2000, the Veteran reported auditory and visual hallucinations. He did not describe the visual hallucinations ("I see things"), but he reported that the auditory hallucinations were "put downs." His speech was clear, his mood was cheerful and that he had not thoughts of hurting himself. In April 2000, the VA psychologist noted that the Veteran was "extremely anxious...his ability to concentrate and attend appear to be impaired by his anxiety. While he is capable of insight, emotional arousal makes maintenance difficult." In May 2000, a VA psychologist noted that the Veteran had "what appeared to be an anxiety attack." He was noted to be "obsess[ing] over his meeting with disability." In August 2000, a VA nurse noted the Veteran was dressed and groomed appropriately, denied suicidal/homicidal ideation, and denied hallucinations. He did not complain of sleep disturbance. He was assigned a GAF of 60, but the nurse also noted the Veteran was "socially and industrially impaired and is unemployable at this time." In July and October 2000, VA psychiatrist assigned GAF scores of 60 for the Veteran's PTSD. He was noted to be anxious, with an appropriate affect, and relevant/coherent speech. He denied suicidal and homicidal ideation, and his insight and judgment were intact. In April 2001, the Veteran was noted to be tearful and anxious when interviewed. He also was noted to have "high" anxiety and anger levels. He was assigned a GAF of 45. Of record is an August 2001 VA medical record noting a diagnosis of PTSD, as well as complaints of nightmares, anger with the government over his disability claims and chronic pain. The Veteran was advised to consider non-combat trauma group or anger management group counseling. In March 2002, a VA care provider noted that the combination of the Veteran's PTSD symptoms and his literacy problems resulted in limited cognitive abilities. An August 2002 VA note documented the Veteran was then married to a supportive wife. At this time, the Veteran presented with a variety of psychiatric symptoms similar to PTSD, including depression, anxiety, anger and avoidance. It was noted that in the past summer the Veteran had digressed to a psychotic state when a neighbor of his sister's triggered a host of paranoid ideation. The Veteran remained extremely anxious and his ability to concentrate and attend remained impaired by his anxiety. Although he was capable of insight, emotional arousal made maintenance difficult. He did not respond well to traditional methods of relaxation. PTSD and ADHD were assessed. In October 2002, he was assigned a GAF of 50. In January 2003, the Veteran was afforded a VA PTSD examination. On mental status evaluation, his appearance was satisfactory and he was cooperative. His speech was relevant and coherent. He endorsed significant anxiety, anxiety attacks, depression, and hallucinations. He admitted homicidal and suicidal thoughts at time, but had no plan or desire to act on his thoughts. He reported he had difficulty with sleep at one time, but that he has more rest at night due to his medications. He reported significant trouble remembering his childhood. The examiner diagnosed PTSD and assigned a GAF of 48. In April 2003 the Veteran received an initial psychiatric assessment through VA. At this time, he asserted that he had PTSD and that he got depressed a lot over his physical health. He complained of nightmares, recurrent dreams, difficulty with anger and trouble sleeping. His appetite was OK. With respect to social functioning, it was noted that the Veteran had 4 sisters and that he was very close with them, as well as his father. He had been married 2 times and was then married for 5 years. He was not then working and had last worked as a ceramic tile setter. He had no history of violence or legal issues or any suicide attempts. Mental status examination showed slowed movements. The Veteran was oriented times 3 and his memory for life events was intact. Interpretation of proverbs was abstract and two-step commands were intact. No thought process abnormalities were noted. He denied suicidal and homicidal ideation. He acknowledged flashbacks. His mood was anxious. He was able to understand his treatment plan. The Veteran reported that he did not like crowds and described himself as a loner. He also acknowledged hypervigilance. PTSD was assessed, but no GAF score was assigned. In April 2004 psychiatry medication management note from VA documented a complaint of "nothing is working" in regards to the Veteran's psychiatric medications. The Veteran was very anxious at this time, although mental status examination was within normal limits. In March 2008 the Veteran was afforded a VA psychiatric examination. At the time of the examination, the Veteran described his marriage as "good." He related that he had very few friends and described himself as a loner and one who liked doing things by himself. He worked around the house and went out occasionally for dinner with his wife. For leisure, he worked around the house and fished. He had never been hospitalized for his psychiatric condition. He had not worked in more than 20 years due to a back injury. He did not then contend that his mental disorder prevented him from working. At the time of the examination, the Veteran appeared casually dressed. His psychomotor activity was unremarkable, as was his speech. His attitude was cooperative and attentive. His affect was appropriate. His mood was anxious and he exhibited moderate apprehension. He was able to do serial 7s, but could not spell "world" backwards. (Notably, the record indicates that the Veteran is "illiterate" or that he has limited literacy due to dyslexia.) He was oriented times 3. His thought process was unremarkable, as was thought content, although paranoid ideation was noted. He was able to understand the outcome of his behavior and understood that he had a problem. He complained of sleep disturbance. He had no hallucinations or inappropriate behavior. He was able to interpret proverbs correctly. He had no obsessive or ritualistic behavior or panic attacks. He had no homicidal or suicidal thoughts. The extent of his impulse control was good and he had no episodes of violence. He was able to maintain minimum personal hygiene and there were no problems with activities of daily living. Remote, recent and immediate memory were normal. The Veteran was capable of managing his financial affairs. The examiner assessed "PD NOS" and assigned a GAF score of 50. The examiner specifically ruled out total occupational and social impairment. However, the examiner did find that the Veteran's mental disorder's signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work, mood or school. In this regard, the examiner noted that the Veteran had an anxious depressed mood that was chronic in nature. In October 2008, the Veteran was then upset about his pending claims. He was casually dressed and groomed, with a pleasant demeanor, cooperative attitude and normal psychomotor activity. His speech was normal in rate, volume and prosody. His thought process was goal-directed and he denied suicidal or homicidal ideation or auditory or visual hallucinations. His mood was "not good" and his affect was dysphoric, although he smiled appropriately. Insight and judgment were good. PTSD, by history, history of alcohol abuse, were assessed. A GAF score of 50 was assigned. A December 2008 VA note documents a complaint of nightmares and other PTSD symptoms. He was oriented times 4 at this time, and his thought processes were logical, linear and goal-directed. His mood was anxious and depressed with a constricted affect. No psychotic or manic features were observed. He denied current suicidal and homicidal ideation. PTSD, generalized anxiety disorder and depression, not otherwise specified were assessed. In March 2009 the Veteran presented at a VA facility with a chief complaint of "I am ok." At this time, the Veteran reported to be doing well with his medications and denied any side effects. Mental status examination was stable and the Veteran denied any suicidal or homicidal ideations. PTSD and generalized anxiety disorder were assessed. A GAF score of 50 was assigned. In November 2009 the Veteran was again afforded a VA examination. At this time, he was casually dressed and appeared tense with respect to psychomotor activity. His speech was unremarkable and his attitude was cooperative and attentive. His affect was restricted and his mood was anxious and dysphoric. He was able to do serial 7s and spell a word forward and backward. He was oriented times 3. His thought process and content were unremarkable. He had no delusions and understood the outcome of his behavior. He complained of frequent interruption of sleep; he reported "hearing noises" and having nightmares. He had no hallucinations or inappropriate behavior. He did not interpret proverbs correctly and gave concrete answers in this regard. He did not have obsessive/ritualistic behavior, panic attacks or homicidal or suicidal thoughts. He had fair impulse control and he reported no episodes of violence. He was able to maintain minimum hygiene and had no problems with the activities of daily living. Memory was intact. He was found able to manage his finances. The examiner assessed generalized anxiety disorder and assigned a GAF score of 50. The examiner ruled out total occupational and social impairment, but found that the condition caused deficiencies in thinking. For example, the examiner noted the Veteran's negative thought process and ongoing anxiety related to multiple problems. The examiner also noted mood impairment, manifested by anxiety and depression, as well as reduced reliability and productivity due to severe anxiety and depressed mood with a negative thought pattern. Subsequent VA records document similar complaints and GAF scores of 50. A January 2010 VA note documents a chief complaint of "I am doing better, however I can't sleep." The Veteran had no suicidal or homicidal thoughts. He was casually dressed and groomed. He had a pleasant demeanor and his attitude was cooperative. Speech was normal in rate and rhythm. There were no psychomotor agitations or retardations. Mood was good with a broad range of affect. His thought process was circumstantial. He had no hallucinations and no clear cut evidence of delusion. Memory was intact, as were spatial skills. Judgment and insight were sufficient. PTSD and rule out bipolar affective disorder were assessed. A GAF score of 50 was assigned. Subsequent VA records document similar complaints. In September 2011, the Veteran then sought a "letter about [his] PTSD." At this time, the Veteran apparently complained of chronic PTSD and anxiety symptoms and it was noted that the Veteran's condition affected his ability to work. The Veteran offered similar complaints of anxiety, flashbacks, nightmares, hypervigilance and sleep disturbance. At the time, the Veteran was dressed appropriately and appeared restless. He was cooperative and his speech was normal. He was chronically anxious and distractible. His concentration was brief and memory was normal. Thought process and content were normal. Judgment and insight were fair. He had no homicidal/suicidal thoughts. PTSD, generalized anxiety disorder, and depression, not otherwise specified were assessed. A GAF score of 45 was assigned. In September 2011, the Veteran testified before the Board. At this time, he explained that he had a lot of anxiety problems that kept him from doing many things around the house and with other people. He related that he could not socialize very well and complained of having the "jitters and the shakes" from his anxiety. He noted that he was taking Paxil and Valium for his anxiety . He testified that he did not get along well with others or trust others. He also complained of sleep disturbance, memory problems, avoidance and verbal violence. The Veteran's representative noted that the Veteran's condition had been characterized as chronic and moderately severe in intensity. The Veteran felt that he would not be able to work because of his anxiousness and anxiety. In December 2011, the Veteran complained of flashbacks, nightmares and hypervigilence. He also stated his sleep was poor, and he had frequent nightmares. On mental status evaluation, he was dressed appropriately and cooperative, thought restless. His speech was normal, and his mood was "chronically anxious." He was distractible but his memory was normal. He denied hallucinations, and did not express delusional thoughts. He was assigned a GAF of 50. The Veteran reported a history of suicidal ideation in March 2012, but denied any ideations or threats recently. In February 2013, the Veteran was afforded another VA examination. The examiner noted that the Veteran's complaints of sleep difficulty, worry, and social isolation were attributable to his anxiety disorder, but that his behavioral problems and judgment impairment were associated with substance abuse. The examiner noted the Veteran was recently violated his VA pain management "narcotics agreement" due to testing positive for marijuana. The examination reported allowed the examiner to choose among different degrees of occupational or social impairment consistent with the rating criteria, and the examiner chose the opinion reflecting had occupational and social impairment with occasional decreases in work efficiency and intermittent period of inability to perform occupational tasks. The examiner noted that the Veteran's anxiety disorder included symptoms of: anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships and an inability to establish and maintain effective relationships. He also had irritability, social isolation, restless sleep and he alleged auditory hallucinations but without observed behavioral evidence. The examiner noted that he could not rule out the stating of symptoms or exaggeration of symptoms on the basis of the examination. He noted that additional testing would be required to determine malingering, and that as the Veteran claimed to be illiterate, psychological testing would be very difficult. The Veteran was assigned a GAF of 55, "consistent with symptoms of moderate severity." In this case, it is observed that the Veteran has been assigned GAF scores ranging from 45 to 60. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (observing that GAF is a scale reflecting the 'psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness' under the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS). See also Richard v. Brown, 9 Vet. App. 266, 267 (1996). Scores ranging from 51 to 60 reflect 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 of 41-50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional ritual, frequent shoplifting), or any serious impairment in social, occupational, or school functions (e.g., no friends, unable to keep a job). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Veteran's description of his psychiatric symptoms has been relatively consistent. The 2013 VA examiner noted that there is no behavioral evidence of hallucinations, and the Veteran alternates between endorsing hallucinations and denying them. Additionally, a review of the Social Security Administration (SSA) judicial findings, the Board notes that the administrative law judge found "a significant degree of exaggeration in the [Veteran's] testimony." Thus, while the Board generally finds the Veteran's statements to be credible, his statements regarding hallucinations are noted to be less credible than his other consistently reported symptoms. Anxiety disorder After a thorough review of the claims file the Board finds that an initial 50 percent rating is warranted. The Veteran has chronic, severe anxiety, and is frequently described as having an anxious affect and mood. He also endorses frequent anxiety attacks, and one such attack was witnessed during VA treatment. He has indicated that he has difficulty sleeping, and experiences nightmares. On occasion his medication has improved his sleep, but sleep impairment is a frequent complaint. He has also noted that he is hypervigient and that he is a loner. On one occasion, in 2000, he was noted to have pressured speech. He has also indicated a history of suicidal ideation in 2012, although prior VA treatment reports consistently noted a denial of homicidal or suicidal ideation. He at one time indicated thoughts, but without any intent. His symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity to due to panic attacks more than once a week, difficulty in understanding complex commands (assumed based on the finding that his cognitive abilities are affected by the combination of his psychiatric symptoms and limited literacy), impaired judgment (alcohol and marijuana use), disturbances of motivation and mood (anxious and a "homebody"), and difficulty in establishing and maintain effective work and social relationships. Although the 2009 examiner noted that the Veteran had occupational and social impairment due to deficiencies in thinking and mood, he noted that he did not have deficiencies in family relations or judgment. His deficiencies in thinking and mood were noted to be a negative thought process and ongoing anxiety, and his deficiencies in mood were noted to be anxious and depressed moods. While the Veteran's level of anxiety is severe, and he has difficulty in adapting to stressful circumstances, his overall symptoms do not more nearly approximate the criteria for the next higher level. The Veteran does not exhibit symptoms similar to illogical speech, near-continuous panic affecting routine activities (he indicated in 2013 that he participates in chores and can handle his finances), impaired impulse control such as periods of unprovoked violence, spatial disorientation, neglect of personal hygiene, or an inability to establish and maintain effective relationships. His ongoing GAF scores also support a 50 percent rating, as they represent generally moderate, but sometimes serious symptoms. As such, although the Board again acknowledges a recent report of suicidal ideation, the Board finds that the Veteran's anxiety warrants a 50 percent rating, but no more, for the entire period on appeal. Given the assertion of unemployability, the Board has also considered the question of whether the Veteran's PTSD is manifested by total social and occupational impairment so as to warrant a 100 percent rating, even though the symptoms identified among that criteria are not met. However, while the Veteran does report some isolation, the evidence reflects that the Veteran has maintained favorable relationships with several family members, including his wife. Also, the evidence with respect to his employment shows that he stopped working due to a back disability. While the reflect does reflect that he was given GAF scores of 50 or less on several occasions, the Board notes that VA examiners in May 2008, November 2009, and March 2013 all consistently determined that the Veteran's PTSD was not manifested by total social and occupational impairment. The Board ultimately finds the specific clinical findings of these VA examiners following thorough evaluation to be more probative than the GAF scores or the Veteran's own assertion of unemployability. The only medical opinion to the contrary is a notation by a VA nurse describing the Veteran to be "socially and industrially impaired and is unemployable," during a mental health visit in 2000. However, given the lack of accompanying rationale, the Board affords this finding significantly less probative weight than those of the VA examiners discussed above. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 first 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 attendant thereto 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected anxiety disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the Board has considered whether the Veteran's symptoms more nearly approximated a higher rating. There is no evidence in the record of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the preponderance of the evidence is for a rating of 50 percent, and no higher. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. See Fenderson, supra. TDIU The Veteran contends that his service-connected disabilities preclude him from securing or maintaining substantially gainful employment, entitling him to a TDIU. He specifically contends that his service-connected anxiety disorder renders him unemployable as he cannot handle stress and prefers not to work with others. His anxiety disorder is rated 50 percent disabling, and his hemorrhoids are rated 10 percent disabling. He has a combined evaluation rating of 60 percent. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 . A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. Bowling v. Principi, 15 Vet. App. 1 (2001). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. SSA disability benefits were awarded for a lumbar spine disability, with onset in March 1991. The Veteran was also noted to have dyslexia and an affective disorder. A March 1993 private orthopedic treatment record noted the Veteran was "essentially disabled from any type of gainful employment" due to the spasms in his lumbar spine. As noted above, in April 2000, a VA physician noted the Veteran's concentration was impaired due to his anxiety. A July 2000 letter from a VA physician noted the Veteran was unemployable due to chronic bronchitis, elevated cholesterol, borderline diabetes, chronic headaches, and degenerative arthritis. In August 2000, a VA nurse found the Veteran to be "socially and industrially impaired and is unemployable," during a mental health visit. As noted above, in March 2002, the combination of the Veteran's limited literacy and his anxiety symptoms were noted to limit his cognitive abilities. A March 2009 letter from a private physician noted the Veteran was not suitable for jury duty due to his anxiety, although an explanation was not provided. An April 2012 private physician statement noted the Veteran was unemployable due to his lumbar spine disability. In February and March 2013, the Veteran was afforded VA examinations in conjunction with his claim for TDIU. During the VA examination for hemorrhoids the veteran declined a physical examination because he did not have active symptoms. The examiner noted his hemorrhoids would not interfere with employment. During the mental health examination, the Veteran reported he was expelled from 9th grade for fighting, and so had an 8th grade education. After service he was employed in construction, and worked laying tile. He reported he was able to do limited physical activity, and could complete minor chores around the house and look after his daily needs. The examiner found that the Veteran's service-connected disabilities did not render him unemployable because his day-to-day functioning included light household chores, meal preparation, food shopping, limited yardwork, comanagement of finances, and visits with friends and family. The examiner found that the Veteran's anxiety disorder was not severe enough to render him unemployable such as preventing him from leaving his household, interacting with people or preventing minor chores. The examiner noted that severe anxiety disorders, when completely incapacitating, usually involve severe panic attacks, agoraphobic reactions, etc. As the Veteran did not exhibit these severe anxiety symptoms, the examiner found that he was not unemployable due to his service-connected disabilities. The Board notes that the Veteran has not worked since 1986 (his TDIU forms) or 1991 (SSA records), and that he was last employed in construction. His prior employment has all been of a manual labor capacity, and there is substantial evidence among his medical records that he is unemployable primarily due to his lumbar spine disability. In this regard, the Board notes that there is nothing in either the lay or medical evidence of record to suggest that his service-connected hemorrhoids significantly impact his employability, although has pointed to his service-connected anxiety disorder as impacting his ability to work. In this regard, the Board notes that only one health care provider has offered an opinion that such disorder renders him unemployable, and this was provided by a nurse in August 2000. Significantly, however, no accompanying rationale was provided. On the other hand, VA mental health examiners have consistently determined following thorough evaluation that the Veteran was not unable to work due to his service-connected anxiety disorder. In summary, the Veteran's current combined disability evaluation of 60 percent is insufficient to consider TDIU on a schedular basis, and the most probative evidence weighs against concluding that the Veteran is precluded from securing or following a substantially gainful occupation so as to warrant referral for extraschedular consideration. Accordingly, the benefit sought on appeal is denied. ORDER Entitlement to an initial rating of 50 percent for anxiety disorder is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to a TDIU is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs