Citation Nr: 1420004 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 09-35 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include dysthymic disorder, anxiety disorder, and posttraumatic stress disorder (PTSD) prior to January 4, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Shari Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. He has been awarded the Combat Infantryman's Badge, among others. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which established service connection for dysthymic disorder, and assigned a 10 percent disability evaluation for the disorder. Subsequently, the RO issued a July 2009 rating decision increasing the Veteran's disability rating for dysthymic disorder with anxiety disorder to 50 percent. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in May 2011. A written transcript of this hearing was prepared and incorporated into the evidence of record. Although the RO framed the issue on appeal as entitlement to initial disability rating in excess of 50 percent for dysthymic disorder with anxiety disorder, a review of the record indicates that the Veteran has also been diagnosed with posttraumatic stress disorder. Recent case law mandates that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board, in December 2011, recharacterized the issue of entitlement to service connection for dysthymic disorder with anxiety disorder to the broader issue of entitlement to service connection for an acquired psychiatric disability, as is reflected on the cover page. See Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision). In December 2011, the Board remanded the case for further evidentiary development. After the development was accomplished, an April 2012 rating decision granted a 100 percent rating for PTSD to include dysthymic disorder and anxiety disorder effective January 4, 2012. The 100 percent rating represents the full benefit sought on appeal for the period from January 4, 2012. However, as the increase in the rating for the Veteran's acquired psychiatric disorder for the period prior to January 4, 2012, does not represent the maximum rating available for the condition, the Veteran's claim for a higher initial evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that in May 2012, the Veteran sent a letter to the Appeals Management Center (AMC) indicating he had no other evidence to submit and to return the case to the Board for further appellate consideration. Subsequently, the Veteran and his representative submitted an Appeals Satisfaction Notice withdrawing any remaining issues that had been remanded. However, in April 2014, the Veteran's representative submitted a Post-Remand Brief. The Board construes such action as intent to not withdraw, but continue his appeal. All records on the Virtual VA paperless claims processing system and the Veterans Benefits Management System, including the April 2014 Post-Remand Brief and VA treatment records dated from April 2010 to December 2011 have been reviewed and considered. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to January 4, 2012 under 38 C.F.R. § 4.16(a) and (b) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDING OF FACT Prior to January 4, 2012, the Veteran's service-connected acquired psychiatric disorder was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms; but the higher rating requiring occupational and social impairment, with deficiencies in most areas, is not shown during this period. CONCLUSION OF LAW Prior to January 4, 2012, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1110, 1111, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Veteran's service treatment records (STRs) and post-service medical records have been associated with the claims file. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. The Veteran has also been afforded VA examinations, most recently in January 2012 for information and for evaluation of his psychiatric disability. There is no evidence that the VA examination reports are deficient in any manner. The examiners reviewed the treatment records in the claims file, considered the Veteran's history and lay reports, and described his disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As noted above, the Veteran participated in a Travel Board hearing in May 2011. Finally, the Board finds that there has been substantial compliance with December 2011 Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Outstanding VA medical records have been obtained and the Veteran was afforded a VA compensation examination which was conducted in accordance with the Board's directives. Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board has also reviewed the Veteran's paperless Virtual VA claims file and has considered VA treatment records associated with that file. There is no indication of relevant, outstanding records that would support the Veteran's claim for a higher rating for his acquired psychiatric disorder for the period prior to January 4, 2012. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where an appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's PTSD. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. 119. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. By way of history, prior to January 4, 2012, the Veteran's service-connected acquired psychiatric disorder, to include dysthymic disorder, anxiety disorder, and PTSD is rated 50 percent disabling, under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. Id. A 70 percent evaluation applies when a veteran's occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (2013) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. III. Factual Background A February 2008 VA treatment record details an evaluation of the Veteran during the Stress Treatment Program. The Veteran presented for the appointment dressed in casual clothing with adequate grooming. He was alert, cooperating during the interview, had a pleasant demeanor, made good eye contact, and had no evident thought disorder. He reported that he was married and had been retired for about 10 years. He reported that he was currently experiencing chronic depression of a long-standing nature which became worse after he retired in 1999. He reported that he felt more depressed, although he denied having suicidal or homicidal ideation. When asked, he indicated that he was unaware of any triggers for this emotional change. He reported that he had occasional nightmares about an ammunition explosion incident in service. He acknowledged that he had some intrusive memories of that event. He denied problems with anger management. He reported no history of physical violence, when directly asked. There was no evidence of substance abuse, either presently or in the past. There was no evidence of avoidance symptoms, although he did report being shy or reticent in social settings. He reported that he enjoyed cooking, golfing, swimming, bicycling, and that he attended sporting events. The Veteran was diagnosed with dysthymia and did not meet the diagnostic criteria for PTSD. A May 2008 VA psychiatry outpatient note reflects that the Veteran enjoyed housework, exercising daily, tapering in the garage, and meeting friends every Friday for breakfast. Upon mental status exam, the Veteran was cooperative and dressed unremarkably. His thought process was logical, linear, and goal directed. His mood was described as anxious, rated as a four out of ten, but with family it was an eight out of ten. His affect was congruent and stable. He denied hallucinations and no delusions were elicited. The Veteran was cognitively alert and oriented to all spheres with memory and concentration grossly intact. His insight and judgment were also fair. The Veteran was diagnosed with an axis I diagnosis of dysthymic disorder and anxiety disorder not otherwise specified with some features of PTSD. A May 2008 VA mental health treatment record details a psychiatry follow-up with the Veteran. His noted strengths were good coping skills and the ability to form good interpersonal relationships. He described his problems as being anxiety and depression. The Veteran was given an axis I diagnosis of dysthymic disorder and anxiety disorder, not otherwise specified with some features of PTSD. He was assigned a GAF score of 55. The Veteran was afforded a VA PTSD examination in June 2008, at which time he reported frequent ruminations about his Vietnam combat experience and also about his cousin who was killed in the World Trade Center on September 11, 2001. He reported frequent depressed mood along with poor sleep and concentration. He reported adequate energy and appetite and denied any psychomotor disturbances or suicidal ideation. The Veteran described a good relationship with his wife and family and that he got along well with other veterans. Upon examination, the Veteran presented neatly groomed and appropriately dressed. His psychomotor activity, speech, thought process, and thought content were unremarkable. His attitude toward the examiner was cooperative, affect was appropriate, and mood was dysphoric. The Veteran's attention was intact and he was also intact to person, time, and place. He did not report any delusions or hallucinations. The Veteran did not report any obsessive or ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. His impulse control was noted as good and he was able to maintain his minimum personal hygiene. The Veteran also reported normal memory. He was given an axis I diagnosis of dysthymic disorder and an axis IV diagnosis of psychosocial stressors. He was assigned a GAF of 60. A June 2008 VA psychology individual therapy record noted the Veteran's feelings of hypervigilance and fear with resultant anxiety that lead to irritability. He denied suicidal or homicidal ideation, plan or intent. He was engaged and verbal during therapy, his mood was anxious, and affect was congruent. Eye contact was intermittent. The examiner observed that he appeared to have some insight into the relationship between thoughts and feelings and appeared to have continued distress related to his military experience. It appeared as though his distortions were a result of such experience. The Veteran reported that he was able to tolerate some confrontation regarding thought process. The clinical psychologist diagnosed him with dysthymic disorder and anxiety disorder, not otherwise specified with some features of PTSD. In July 2008, the Veteran sought VA treatment for medication management and supportive psychotherapy for his dysthymic disorder and anxiety disorder not otherwise specified with some features of PTSD nature. The Veteran described his recent progress stating that he had been doing pretty well with prescription anti-depressant medication and that while he did not feel quite normal, his mood was a seven out of ten. He complained of poor sleep and expressed the need for some sort of sleeping agent. Upon mental examination, the Veteran was cooperative, dress unremarkable, and his hygiene was good. He denied any suicidal or homicidal ideation or hallucinations and delusions. Cognitively, he was alert and oriented in all spheres with memory and concentration grossly intact. His insight and judgment were fair. The Veteran was again diagnosed with dysthymic disorder and anxiety disorder not otherwise specified with some features of PTSD. He was assigned a GAF score of 55. During August 2008 VA individual psychotherapy, the Veteran reported becoming upset when remembering his experiences during combat in Vietnam. He expressed that he is not able to sleep well and has frequent nightmares. He reported approximately four hours of sleep per night. He also reported difficulty concentrating and completing tasks. He stated that he feels hypervigilant and is never relaxed. He told the examiner that it is difficult for him to be with people when he is in a group because "he feels responsible for protecting others by being aware of impending danger." He further reported that "before the service he was able to sleep until noon," but not since returning from Vietnam. The Veteran expressed that he often feels irritable and unhappy. He also complained about not being able to stay on a task for a long period of time and that his prescribed medication is helping him to be less aggressive and to be able to control his temper. The Veteran reported that these symptoms have not affected his relationship with his family as he has an excellent relationship with his wife and four daughters. The Veteran recounted the recent time spent with a friend and fellow veteran. He stated that while it was a good experience spending time with him, it also brought a lot of upsetting memories. The Veteran denied hallucinations and any current suicidal or homicidal ideation or intention. Upon mental status exam, the psychologist observed the Veteran to be casually dressed and well groomed with good hygiene. His behavior was cooperative and motivated and his speech was clear and comprehensible. His mood was dysthymic and anxious and affect was congruent. The Veteran's thought process was noted as linear and goal directed without delusion. His insight was observed to be fair with good judgment. The Veteran reported some "memory gaps" from the time he was in Vietnam. The psychologist considered his intellectual functioning to be above average. The diagnosis was dysthymic disorder and anxiety disorder, not otherwise specified with PTSD symptoms related to Vietnam combat. During a September 2008 VA psychology individual therapy session, the Veteran presented on time and was friendly and cooperative. The Veteran reported that the "odor of air when raining reminded [him] of the forest in Vietnam" and he "had to stop and go inside." He denied any suicidal ideation. He was instructed on several relaxation techniques, including deep breathing and progressive relaxation for him to use in the event of an anxiety-provoking event in the near future. Upon mental status exam, he appeared casually dressed and well-groomed with good hygiene. He was cooperative and motivated. His speech was clear and comprehensible. Mood was dysthymic and anxious. Affect was congruent with mood. Thought process was linear and goal directed without delusion. Insight was fair with good judgment. The Veteran reported some "memory gaps" from the time he was in Vietnam. The psychologist considered his intellectual functioning to be above average. The diagnosis was dysthymic disorder and anxiety disorder, not otherwise specified with PTSD symptoms related to Vietnam combat. In October 2008, the Veteran was seen for VA medication management and supportive psychotherapy. He described his recent progress as "pretty good...actually feeling anxious again for the past couple months." There was no particular incipient event identified. He complained of feeling anxious and stressed out compared to previously feeling more settled. He described feeling somewhat depressed but not too bad. He stated that he feels like his anti-depressant medication stopped working. Upon mental status exam, Veteran was observed to be cooperative, dressed unremarkably, with good hygiene. His psychomotor activity and speech were within normal limits. Mood was anxious and rated as a three out of ten with affect congruent. Thought process was logical, linear, and goal-directed. He denied any suicidal or homicidal ideation or plan. He also denied hallucinations and there were no elicited delusions. Cognitively, he was alert and oriented in all spheres with memory and concentration grossly intact. Both insight and judgment were fair. In November 2008, the Veteran was again seen for VA individual psychotherapy. He arrived on time, seemingly anxious, and reported feeling frustrated that he was unable to accomplish an assignment given to him from a previous therapy session. The Veteran reported that everything at home was fine and that he had a good relationship with his children and wife. Upon mental status exam, the psychologist observed the Veteran to be casually dressed and well groomed with good hygiene. His behavior was cooperative and motivated and his speech was clear and comprehensible. His mood was dysthymic and anxious and affect was congruent. The Veteran's thought process was noted as linear and goal directed without delusion. His insight was observed to be fair with good judgment. The Veteran reported some "memory gaps" from the time he was in Vietnam. The psychologist considered his intellectual functioning to be above average. The diagnosis was dysthymic disorder and anxiety disorder, not otherwise specified with PTSD symptoms related to Vietnam combat. The Veteran presented for VA psychiatry therapy in January 2009. The psychiatrist noted that the Veteran's symptoms were rather episodic in nature and his good mood seemed to predominate at the time. The psychiatrist opined that there was no indication of a suicide flag. The Veteran was encouraged to continue follow-up with the therapist. In April 2009, the Veteran underwent a VA mental examination conducted by a VA psychologist. The Veteran denied homicidal and suicidal ideation, as well as hallucinations and attempts to harm himself. Upon mental status examination, the examiner observed that the Veteran appeared somewhat sad and depressed in affect and anxious. He had good recall. There was no evidence of psychosis or thought disorder. The Veteran was given an axis I diagnosis of dysthymic disorder and anxiety disorder, not otherwise specified. His axis IV diagnosis reflected "dealing with anxiety and depression." He was assigned a GAF score of 55. An April 2009 VA psychology individual therapy note documented the Veteran's reports of anxiety and intolerance. He explained that he had been very quick to discipline his children. The psychologist observed that the Veteran exhibited an anxious dysthymic mood with a congruent affect. He explained that he had been dealing with anxiety and avoidance again and that he is also having a short temper. He stated that he mostly stays home and has not consistently practiced any of his relaxation exercises. He denied any suicidal ideation or intention. Upon mental status exam, the psychologist observed the Veteran to be casually dressed and well groomed with good hygiene. His behavior was cooperative and motivated and his speech was clear and comprehensible. The Veteran's thought process was linear and goal directed without delusion. His insight was fair with good judgment. The Veteran reported some "memory gaps" from the time he was in Vietnam. The psychologist considered his intellectual functioning to be above average. The diagnosis was dysthymic disorder and anxiety disorder, not otherwise specified with PTSD symptoms related to Vietnam combat. In April 2009, the Veteran was seen for private psychological testing. There, it was noted that the Veteran experienced maladaptive behavior patterns aimed at controlling anxiety. He had a tendency to deny the negative feelings he was experiencing. His self-esteem was up and down. He was distant in a relationship and did not place a high premium upon close, lasting relationships and viewed most social interactions without much enthusiasm. He reported experiencing hypervigilance, intrusive dreams, and flashbacks of past trauma. The clinical psychologist diagnosed him with PTSD. In May 2009 the Veteran was seen for medication management and supportive psychotherapy of his axis I condition. He described his recent progress as "feeling down, mostly low energy at times" with trouble staying asleep as he wakes up every night at three a.m. The Veteran admitted to drinking a glass of wine every night and he was encouraged to abstain as this may contribute to his insomnia. He rated his mood as a five out of ten. The Veteran was seen for VA individual psychotherapy in June 2009. He attended the session on time. He exhibited an anxious, dysthymic mood and congruent affect. He was observed to be less anxious than his previous session, but he expressed that he had been feeling down with no motivation. He explained that "it is not fatigue because I do not feel any pain in my body or muscles." The Veteran was respectful, willing to talk, and motivated to receive advice. He described that he still deals with increased anxiety and some impulsivity while driving. He reported having a very good relationship with his wife and children. He spoke of his children's upcoming summer activities. The Veteran stated that he keeps himself very busy with maintenance work and domestic chores, volunteering at his children's school and church, taking the children to school, and walking his dog. He further stated that he was planning a summer trip to New York to visit his family. He denied any suicidal ideation or intention. Upon mental status exam, the psychologist observed the Veteran to be casually dressed and well groomed with good hygiene. His behavior was cooperative and motivated and his speech was clear and comprehensible. Thought process was noted as linear and goal directed without delusion. Insight was observed to be fair with good judgment. The Veteran reported some "memory gaps" from the time he was in Vietnam. The psychologist considered his intellectual functioning to be above average. The diagnosis was dysthymic disorder and anxiety disorder, not otherwise specified with PTSD symptoms related to Vietnam combat. At an April 2010 VA PTSD diagnostic evaluation, the Veteran was described as a married Veteran with a history of dysthymia and anxiety symptoms (panic attacks; avoidance; disrupting memories). He reported having nightmares on a regular basis, sometimes weekly and other times, three to four times per week. He demonstrated avoidance of stimuli associated with the in-service trauma. He reported tending to avoid situations where things are unorganized. Examples of such situations include concerts, carnivals, and other events or places where there are large groups of people that are unmanageable. He also reported avoiding movies or documentaries about Vietnam. The evaluating psychologist noted that the Veteran experienced persistent symptoms of hyperarousal associated with the in-service trauma. The Veteran complained of sleep difficulties and that he takes medication to assist with sleep, but that it has not always worked for him. He also reported that he becomes easily irritated with other drivers and finds it difficult to complete activities in one sitting, or reading newspaper articles in their entirety. He further stated that he tends to be on guard all the time and has "to sit where [he] can have the best view of all the surroundings." He also stated that he immediately reacts to loud noises if they are quick and sharp, "so [his] brain can say it is okay." The psychologist noted that these symptoms have caused clinically significant distress and impairment in various areas of psychosocial functioning. The Veteran described feeling that he missed a lot of opportunities that he might have enjoyed in life. Upon mental status exam, the Veteran was observed to be casually dressed but appropriate to setting. His behavior was cooperative but he appeared restless and anxious. Eye contact was variable but within normal limits. His mood was dysphoric to neutral. The Veteran's affect was congruent with mood, but blunted, mildly tearful while relating portions of his combat experiences. His speech was coherent and fluent with normal production. Thought process was well-organized, goal-directed and thought content was relevant, rational, and appropriate to the topic. There was no evidence of hallucinations or delusions. The Veteran was oriented and intact to all four spheres. His memory was also intact and he was described as a solid historian. His fund of knowledge was within normal limits and both judgment and insight were good. He was diagnosed with chronic PTSD, dysthymic disorder, and anxiety disorder not otherwise specified. He was assigned a GAF score of 55. A June 2010 VA Medical Center (VAMC) treatment record noted that upon mental status exam, the Veteran was cooperative and dressed unremarkably with good hygiene. He was also cordial, attentive, and thankful. His psychomotor activity and speech were within normal limits. Mood was euthymic with affect congruent. Thought process was logical, linear, and goal-directed. He denied any suicidal or homicidal ideation or plan. He also denied hallucinations and there were no elicited delusions. Cognitively, he was alert and oriented in all spheres with memory and concentration grossly intact. Both insight and judgment were fair. In a September 2010 VAMC treatment record, the Veteran's lethality assessment noted that he continued to deny suicidal or homicidal ideation or intent and remained actively committed to his family. His danger to self and others continued to be judged as low risk. The Veteran underwent a VA PTSD examination in January 2011. The exam noted that the Veteran has had a long-term daily depressed mood associated with his multiple life losses and sense of emptiness. He described variable daily decreased energy, motivation, interests, self-esteem, libido, appetite, and hope. He reported having past episodic suicidal ideation without gestures, but no recent impulses, intent, or wishes. He reported no history of manic, substance abuse, panic, or psychotic symptoms. The Veteran described close and positive relationships with his wife and four daughters. He sustained occasional phone contact with his brothers. He also reported having a small number of veteran friends who have provided support for his PTSD treatment and that they meet weekly at a local restaurant for breakfast. He reported leisurely activities of home chores, limited errands, attending church and school functions, walking his dog, riding his bicycle alone, watching TV, and attending brief family gatherings. He reported no history of suicide attempts or a history of violence or assaulting behavior. The Veteran has not worked since his retirement in 1999. The Veteran reported that while employed, he was able to sustain basic work requirements over a working career, but worked largely alone at night. He used all of his vacation and sick leave when he was exceptionally anxious, reclusive, depressed, and avoidant of others. He stated that he "volunteers a little" at his church, and typically spends most of his daytime hours engaged in solitary activities. He stated that he preferred to remain in and around his home where he felt less anxious. The Veteran was observed to be clean, appropriately and casually dressed. He was fatigued and tense. Speech was spontaneous, hesitant, clear, and coherent. The Veteran had a cooperative and attentive attitude towards the examiner. Affect was constricted and mood was anxious and dysphoric. He was slightly slow in completing reverse calculations and spelling. He was intact to person, time, and place. Both thought process and content were unremarkable. He did not report delusions or hallucinations. His judgment was good and intelligence was above average. The examiner noted the Veteran to have sleep impairment, explaining that he sleeps relentlessly and lightly approximately four to five hours nightly with multiple awakenings, and one to two remembered alerting combat nightmares weekly with awakening flashbacks, thrashing-swinging, sweats, and following hyperarousal. The Veteran characterized his sleep as improved by medication. The Veteran did not have inappropriate behavior, panic attacks, or homicidal thoughts. He was noted to have obsessive and ritualistic behavior of routinely checking the security of his home several times each night. There was a presence of suicidal thoughts. The extent of his impulse control was fair and he displayed no episodes of violence. He was able to maintain his personal hygiene. His remote and recent memory were normal, but immediate memory was mildly impaired. The examiner deemed him capable of managing his financial affairs, noting that the Veteran and his wife cooperatively, competently, and judiciously manage their financial decisions and transactions. The examiner also noted that the Veteran had daily decreased concentration and occasional suicidal ideation related to his PTSD and dysthymic disorder. He was diagnosed with chronic PTSD and late onset dysthymic disorder. He was assigned a GAF score of 55. During the May 2011 Travel Board hearing, the Veteran testified to having "a lot of mood problems." He stated that he does a lot of things with his family in private. He admitted to overreacting to things that others may not see as a problem. He further admitted to becoming quickly angered and irritable. The Veteran testified to having problems with thoughts of hurting himself or others "more often than [he'd] like to." He stated that his medications were not quite working too well and that he "does not want to [increase] his medication, but maybe there is something better that [he] can try." He reported being on medication for sleep and "getting probably six hours now versus the four [he] was getting." He also stated that he has extra window and door locks and checks them every night before bed. The Veteran's representative stated that "there has been a progression" with his case. The Veteran stated that he has been receiving treatment and attending group therapy. He testified that he used to work for a chemical, pharmaceutical company but retired 13-14 years ago when he "became of age to leave under their retirement policy." The Veteran's representative added that "the disability basically was the finding factor of [his retirement]." The Veteran further testified that his symptoms would prevent him from holding a job. During June 2011 VAMC treatment, the Veteran described intermittent anxiety lasting two to four days every week. A September 2011 individual psychotherapy progress note reflects that treatment was focused on the Veteran's anxiety about a pending trip to Florida to assist a friend with moving. He stated that he had been worrying intensely over the past week, because the friend's home is near Elgin Air Force Base and there are many night training exercises. The Veteran reported significant relief after completing a worksheet. Lethality assessment indicated no suicidal or homicidal ideation. The Veteran remained pleased that he continued to expose himself to anxiety rather than live a life of avoidance. He looked forward to assisting his friend with the upcoming move later that month. The Veteran's danger to self or others continued to be judged as low risk. Mental status exam revealed that he was dressed casually in jeans and was cooperative. Eye contact was within normal limits. His mood was moderate and anxious with congruent affect. Speech was coherent with well-organized thought production and relevant thought content. The Veteran was oriented and intact to all four spheres. His memory was also intact and he was described as a solid historian. His fund of knowledge, judgment, and insight were within normal limits. He received an axis-I diagnosis of chronic PTSD. An October 2011 PTSD group therapy note shows that the Veteran was pleased with himself for completing his assigned task despite a high anxiety level. He was noted to have identified increased confidence as a result of facing one's fears. He provided good insight. A November 2011 PTSD group therapy note shows that the Veteran actively participated in ensuing discussion. He showed solid insight and was able to identify ways in which his thinking had changed since participating in group therapy. IV. Analysis The Board has considered the entirety of the evidence and concludes that, the symptomatology associated with the Veteran's dysthymic disorder, anxiety disorder, and PTSD more nearly approximates a 50 percent rating for the entire period prior to January 4, 2012. A review of the medical evidence during this time frame, which consists of numerous VA mental health notes and psychotherapy treatment records dated from February 2008 to January 2012, hearing testimony provided in May 2011, VA examinations conducted in June 2008, April 2009, and January 2011, shows GAF scores ranging between 55 and 60 (the predominate GAF being 55), with psychological symptomatology primarily consisting of social isolation, nightmares, suspiciousness, disturbances in motivation/mood, impaired memory, and panic attacks (less than once a week). Again, under DSM-IV, scores of 55 and 60, as assigned here, generally reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning. Thus, as supported by the evidence of record, the Veteran's symptoms of dysthymic disorder, anxiety disorder, and PTSD more nearly approximate the level of impairment associated with a 50 percent evaluation. In light of the evidence as noted above, the Board concludes that the Veteran's psychiatric disorder is productive of impairment warranting a 50 percent under DC 9411 for the period prior to January 4, 2012. As for the potential for a higher rating of 70 percent, the Board notes that prior to January 4, 2012, the evidence did not demonstrate that the service-connected acquired psychiatric disorder was productive of occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships. Indeed, while the Veteran may have suffered from some level of social impairment, in that he was socially inhibitive and isolative, the evidence does not show that he was necessarily prevented from establishing and maintaining such relationships. In so finding, the Board acknowledges the recurring evidence demonstrating that the Veteran maintained (and still maintains) a very significant and close relationship with his wife, four daughters, brothers, and a number of fellow veteran friends and is also engaged in regular activities outside of the home with his family and friends (e.g. going to church, school functions, bicycling, and going out for breakfast with friends). While the Veteran described an obsessional ritual of routinely checking his home windows and door locks every night before bed, it is not enough to suggest its interference with routine activities. While the Veteran described that it is difficult for him to be with groups of people because "he feels responsible for protecting others by being aware of impending danger," it was not described as a stressful circumstance of which he has difficultly in adapting. In fact, the Veteran reported running errands, albeit limited, attending church and his children's school functions, walking his dog, and riding his bicycle. While the Veteran has described often feeling irritable, having a short temper, and being quick to discipline his children, he did not have impaired impulse control or similar type and degree. The Board acknowledges that while the Veteran displayed episodic suicidal ideation, it was without gestures and there were no recent impulses, intent, or wishes. Thus, there is no evidence of symptoms, such as 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, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, or symptoms of a similar type and degree; which would warrant a 70, or 100 percent rating prior to January 4, 2012. The Board is also aware that the symptoms listed under the 70 percent rating and in the GAF scale are examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 70 percent evaluation. See Mauerhan, supra. However, as summarized above, the record does not show that the Veteran has manifested symptoms that equate to or more nearly approximate the criteria for a 70 percent rating. In sum, the Veteran's psychiatric disorder has not been manifested by psychiatric symptomatology that approximates, or more nearly approximates, the criteria for an evaluation in excess of 50 percent for the period prior to January 4, 2012, under DC 9411. See 38 C.F.R. § 4.7. ORDER An initial rating in excess of 50 percent for an acquired psychiatric disorder, to include dysthymic disorder, anxiety disorder, and PTSD for the period prior to January 4, 2012, is denied. REMAND The evidence of record suggests that the Veteran's service-connected disabilities render him unable to follow a substantially gainful occupation. Total disability based on unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one disability should be rated at 40 percent or more and the combined evaluation should be 70 percent or more. 38 C.F.R. § 4.16(a). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran's service-connected disabilities are non-Hodgkin's lymphoma, rated as noncompensably disabling and dysthymic disorder and anxiety disorder, rated as 50 percent disabling from December 17, 2007 to January 4, 2012. The combined evaluation for the Veteran's service-connected disabilities is 50 percent disabling. Therefore, the Veteran's combined disability rating is not 70 percent or more. Therefore, the criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because the Veteran does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a), a TDIU under 38 C.F.R. § 4.16(a) is denied. Though the criteria for a TDIU under 38 C.F.R. § 4.16(a) are not met, there is evidence that shows that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. §§ 3.340, 4.16(b). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The record shows that the Veteran has been unemployed since retirement in 1999. See e.g., January 2011 VA examination. The Veteran reported that he retired because he was eligible and because of medical problems. He further reported that while employed, he was able to sustain basic work requirements over his working career, but worked largely alone at night. He further reported that he used all of his vacation and sick leave when he was exceptionally anxious, reclusive, depressed, and avoidant of others. During the May 2011 Travel Board hearing, when asked if his psychiatric symptoms would prevent him from holding a job if he were to return to the workforce, the Veteran testified, "Absolutely. I couldn't walk into a place and stay there a few days." Although not evidence for the Board's consideration, the Board, however, finds it noteworthy that the examiner who conducted the Veteran's January 2012 VA examination opined that "if the [Veteran] were to work, it is not possible to state whether the PTSD or dysthymia would affect his work more. They would both contribute to his decreased reliability and productivity." Based on these facts, it appears that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the Director of the Compensation and Pension Service for consideration of assignment of an extra-schedular evaluation as to whether the Veteran was unemployable by reason of service-connected disabilities under 38 C.F.R. § 4.16(b) for the period prior to January 4, 2012. 2. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant 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. 2013). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs