Citation Nr: 1521704 Decision Date: 05/20/15 Archive Date: 05/26/15 DOCKET NO. 06-34 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder for the period prior to May 13, 2009, and in excess of 70 percent as of March 1, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities for the period prior to March 1, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from September 1967 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection for an anxiety disorder and assigned an initial 30 percent disability rating, effective the date of his claim, July 28, 2003. In a May 2005 rating decision, the RO increased the Veteran's initial rating from 30 percent to 50 percent, effective July 28, 2003. In August 2006, the Veteran and his spouse appeared before RO personnel for an informal conference. A copy of the informal conference report is of record. In November 2010, the Board remanded the claim for further evidentiary development. In an April 2012 rating decision, the RO granted a temporary 100 percent rating effective May 13, 2009, due to psychiatric hospitalization over 21 days. A 70 percent rating was assigned effective March 1, 2010, following his discharge from inpatient psychiatric treatment. The RO included PTSD as part of his service-connected psychiatric disorder. Thus, the Board's consideration of the claim for initial higher ratings excludes the time period for which a temporary total rating was in effect. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In its November 2012 remand, the Board took jurisdiction over a TDIU claim and remanded the case for further development. The case was remanded again in September 2013. In April 2014, the RO granted a TDIU effective March 1, 2010. Because TDIU was not granted for the entire appeal period, that issue is still before the Board. In July 2014, the Board remanded the claims on appeal for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. As previously noted in the July 2014 remand, the issues of entitlement to service connection for asthma and to a compensable rating for headaches were raised in the Veteran's representative's May 2014 statement but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. For the period prior to October 22, 2007, the Veteran's acquired psychiatric disorder symptoms are indicative of occasional occupational and social impairment with reduced reliability and productivity. Occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships are not demonstrated. 2. As of October 22, 2007, excluding a period of a temporary total rating, the Veteran's acquired psychiatric disorder symptoms are indicative of occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. Symptoms of total occupational and social impairment have not been demonstrated. 3. For the period beginning on October 22, 2007, the Veteran's service-connected psychiatric disability is rated as 70 percent disabling, and thus, meets the minimum percentage requirements for an award of a TDIU. However, the Veteran was employed in full-time substantially gainful employment through February 26, 2009. 4. Resolving all reasonable doubt in favor of the Veteran, the medical and other evidence of record reasonably demonstrates that his service-connected acquired psychiatric disability rendered him unable to secure or follow a substantially gainful occupation no earlier than February 27, 2009. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for an acquired psychiatric disorder, for the period prior to October 22, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2014). 2. The criteria for a 70 percent rating for an acquired psychiatric disorder, effective October 22, 2007, excluding a period of a temporary total rating, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2014). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU for the period prior to March 1, 2010, but no earlier than February 27, 2009, have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in August 2003 and in April 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent January 2015 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating-Acquired Psychiatric Disorder Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014). When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2014). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126(a) (2014). When evaluating the level of disability from a mental disorder, VA 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(b). The Veteran's acquired psychiatric disorder has been assigned a 50 percent rating prior to May 13, 2009, and a 70 percent rating as of March 1, 2010 (excluding a period of a temporary total 100 percent rating), pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413 and the General Rating Formula for Mental Disorders. Pursuant to the General Rating formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent 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 9413, General Rating Formula for Mental Disorders (2014). Reports of psychiatric examination and treatment frequently include a GAF score. According to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF scale includes scores ranging from 0 to 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health- illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a) (2014). A. Prior to October 22, 2007 A September 2003 VA examination report reflects that the Veteran reported for the last 10 years in his employment he has good work performance and denied problems getting along with others. He does not have any close friends. He has five siblings that he is close to, but not real close. He has been married for 28 years and has undergone brief marriage and individual counseling in the past. He has 3 children. He was alert and oriented, neatly groomed and dressed. His eye contact was within normal limits. He appeared quite anxious and tended to stammer and was hesitating in his speech. He seemed indecisive at vacillating as he spoke. He smiled inappropriately due to anxiety. He was logical, coherent and cooperative. His observed affect was primarily anxious. He has somewhat of a lack of energy and motivation sometimes. He enjoys reading and watching sports. He denies history of suicidal ideation or attempts. No psychiatric diagnosis was provided. An April 2004 VA mental health note reflects that the Veteran was fully employed. He has some periods of anxiety and a great deal of guilt surrounding several incidents that occurred during service. Current stressors include an emotionally distant relationship with his wife. He was well groomed, well oriented with adequate eye contact. Cognition and memory were assessed at normal. Speech was fluent. He was euthymic and affect was mood congruent. Thought process was fair and coherent. Thought content was negative for suicidal or homicidal ideations, obsessions, and suspicions. No indication of hallucinations, dissociation, derealization or depersonalization. Judgment was assessed as being intact. The Veteran reported that the severity of his depressed mood was a 2 or 3 on a sale of 10, 10 being the most severe. The Veteran reported that any depressed feelings typically last only 10 to 15 minutes and that is not very often. He has decreased interest in activities. He gets 6 hours of sleep a night. Moderate energy level. Denied any thoughts of self-harm, mania or hypomania. He endorsed episodic anxiety, which on occasion causes some mild to moderate discomfort, lasting maximum fifteen to twenty minutes. He endorsed palpitations, numbness, tingling in his extremities, and some mild derealization. The diagnosis was anxiety disorder, NOS, and a GAF score of 70 was assigned. A July 2004 VA mental health treatment plan notes a diagnosis of anxiety disorder, NOS, rule out schizoid personality disorder, and a GAF of 70 was assigned. A July 2004 VA examination report reflects that the examiner agreed with the diagnosis of generalized anxiety disorder and a GAF score of 70. The Veteran was noted to have a stable job, was married with 3 children. He was a treasurer of Knights of Columbus and attends those meets and attends mass. He has no particular hobbies. His wife said that he takes care of the yard, cuts the grass, and shovels the snow. The Veteran described himself as a bit irritable, but not violent. Affect was characterized by tension. No history or current evidence of psychosis. An October 2004 VA examination report reflects that the Veteran works full time as a bookkeeper. He also has a part-time job as a janitor for the last couple years for additional income. He has been married since 1975, which he described as a satisfactory relationship and he has three sons. He attends church and is a member of the Knights of Columbus. He has a number of casual acquaintances, but no real close friendships. The Veteran denied any past episodes of major depression and described his current mood as about the same, not too exciting, just existing, hanging in there. He reported some gradual loss of interest in things he used to enjoy such as socializing and hobbies. He reported having one to two nights per week when he has trouble falling asleep because his mind drifts back to the past. He denied any problems with appetite or weight change. He has had decreased energy for several years. He denied trouble with concentration, feelings of hopelessness, helplessness or worthlessness, history of suicidal or homicidal ideations, obsessive compulsive symptoms, phobia, generalized anxiety disorder or agoraphobia. When asked about panic disorder, he reported some situations at night when he will wake up and have a sensation of suffocating. On mental status post left knee arthroplasty examination, the Veteran was casually dressed and well groomed. Affective expression was normal in range and intensity, and mood was mildly anxious. Speech output was generally fluent, although sometimes he struggled to put his thoughts into words. Thought form was logical and coherent. He demonstrated good insight and appears to have good judgment. Psychological testing was suggestive of mild generalized emotional distress and discomfort. He was diagnosed with anxiety disorder, not otherwise specified (NOS), mild to moderate, and a GAF score of 65 was assigned. A February 2005 VA mental health record notes that the Veteran continued to maintain increased recreation. He was named a vice president of his chapter of Knights of Columbus, so he has increased responsibilities in planning events and meetings. He has maintained his ability to read books for recreation. He is doing well at work and with family members. He tends to have intrusive memories of his time in Vietnam in the spring. The diagnosis was anxiety disorder. Although he is rather isolated with subdue affect, he does not appear to have schizoid personality disorder. A May 2005 DRO informal conference report reflects that the Veteran reported that he had problems getting and staying asleep. He does not get along with the owners of where he works. He gets along with co-workers, however, he stays fairly isolated in the office. He has difficulty with social situations. He has some memory loss and difficulty with complex commands. He reported some intrusive memories of the war and events in Vietnam. When he is having a bad day, he reports that it is difficult for him to be motivated at work. In a May 2006 statement, the Veteran asserted that his anxiety disorder warrants a 70 percent rating because he was withdrawn, does not read or participate in activities, and has a strained relationship with his family. When driving he become disoriented and makes wrong turns even when going to familiar locations. He is not considerate or appreciative and has a very negative outlook. He awakes at night in a panic attack. He is isolated in his social life. At work, he is unable to handle any stressful encounters. He has to write himself notes for daily tasks and has great difficulty communicating with fellow employees and is a "loner" at work. A June 2006 VA examination report reflects that the Veteran continued to be employed as a bookkeeper and attends meetings of the Knights of Columbus and weekly mass. He seemed to have given up on his hobbies and had taken on no new ones. He likes to read, but doesn't read very much. He described himself as a bit of a loner. He gets to bed around midnight and is up at about 5:30. He denies nightmares, amnesias, or sleepwalking. The examiner specifically noted that the Veteran had no real particular change in his life or symptomatology since his last visit. The examiner found the Veteran to be casually dressed and reasonably neat, pleasant, oriented, alert, and cooperative. Affect was characterized by tension. Speech was normal in mechanics and content, reflecting the affect. Associations were coherent and relevant. Intellectual functioning was grossly intact. The Veteran was sleeping very well. He denied nightmares, amnesias or sleepwalking. He has no history or current evidence of psychosis. He has lost a little weight for no particular reason. The diagnosis was generalized anxiety disorder, psychosocial stressors were felt to be minimal, and a GAF score of 70 was assigned. A July 2006 VA mental health progress note reflects that the Veteran was having fewer PTSD symptoms since spring in that he has infrequent flashbacks compared to earlier in March. The Veteran stated his mood had also been improved by becoming a Grand Knight in the Knights of Columbus. The assessment was anxiety disorder, NOS. In an October 2006 letter, the Veteran asserted that he has fewer friend and no desire to make new ones. As a result, he is anxious and withdrawn when in groups of people. His work as a bookkeeper has been affected more and more by his short-term memory loss in that his ability to remember daily deadlines is impaired. He limits his vacation days because not being there causes more anxiety then it is worth. His sleep has declined and he continues to have flashbacks, panic attacks, cold sweats, and difficulties returning to sleep. Being a member of the Knights only makes him uneasy and anxious about what is expected from him. He felt that his anxiety disorder affects his relationship with his son and everything in his life. He does not have any motivation or energy to make time with his family. Despite counseling, most of the time he felt like his life would never get any better. In an October 2006 letter, the Veteran's wife indicated that the Veteran has constant, repetitive questions. He has had more unwarranted outbursts of disagreement. The Veteran has put no effort in spending time with their youngest son. The Veteran's sleep pattern is so sporadic and interrupted that he needs total silence to get any sleep. He does not accept change very well. The Veteran spends a lot of time to himself. An October 2006 VA mental health record notes that the Veteran continues to do fairly well in his individual mood and functioning. The Veteran was starting to think about his retirement, he plans to retire at age 62. He was assessed with anxiety disorder, NOS. A November 2006 VA medical clinic record notes that the Veteran had nightmares or thought about an event in the past, that he was constantly on guard, watchful, or easily startled, and felt numb or detached from others activities or his surroundings. The Veteran was noted to be depressed at times, not hopeless. A January 2007 VA mental health note reflects that the Veteran reported that his mood has been more positive than negative. He doesn't like his work situation, but with two years to go until he can retire, it makes sense to stay there and he can live with that. The Veteran appeared comfortable and coping with symptoms satisfactorily. The assessment was anxiety disorder, NOS. A May 2007 VA mental health note reflects that the Veteran continued to function well at work and at home. He remains quiet and doesn't socialize a great deal, but he is active at church and with Knights of Columbus fraternal organization. His relationship with his wife is satisfactory. He has had worries about his son. The therapist noted that the Veteran has been stable for some time now and they discussed whether he was ready to terminate. They agreed that the Veteran would call for an appointment in the future if needed, but would not schedule any more at this time. The assessment was anxiety disorder, NOS, functioning well, mood is satisfactory. A June 2007 VA mental health treatment note reflects that the Veteran's anxiety disorder was evidenced by agitation/tension, irritability/tension, difficulty concentrating, decreased interest/pleasure, history of trauma exposure, and avoidance behaviors. A GAF of 65 was assigned. A September 2007 VA mental health record reflects that the Veteran returned for treatment after an injury at his second job with chronic pain resulting in depressed mood. He denied any suicidal ideations. He was thinking about quitting his full time job, but he continues for another 18 months. He could collect Social Security Retirement pension. With the present pain and confusion as to do he has been depressed, tending to do nothing when at home and to have even less interest in socializing. The assessment was anxiety disorder, NOS. Increase in depressed mood due to chronic pain and confusion about important decisions regarding his life. The Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the Veteran's psychiatric disability. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this regard, however, the Board finds that the evidence does not support an initial rating higher than the initially assigned 50 percent rating at any point prior to October 22, 2007. The initial 50 percent rating contemplates occupational and social impairment with some reduced reliability and productivity due to symptoms such as impairment of judgment; disturbances of motivation and mood; and difficulty maintaining effective relationships. The Veteran had anxiety, depression and some social isolation, although he had good relationships with his wife and sons, he denied suicidal or homicidal ideation, and he did not endorsed aggression or violence as part of his service-connected psychiatric disability's symptomatology. Moreover, the evidence does not indicate, nor has the Veteran reported, that his psychiatric disability was manifested by obsessional rituals which interfered with routine activities, near-continuous panic or depression, spatial disorientation, or neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships or more severe symptoms such as to warrant at least the next higher 70 percent rating. Consequently, the Board finds that the weight of the evidence is against granting an initial rating in excess of 50 percent at any time prior to October 22, 2007. While the Veteran's tendency towards isolation made social interactions complicated, he did have the ability to establish and maintain effective relationships as shown by his marriage to his wife and his relationship with his children and members in the Knights of Columbus. There is also no evidence that, prior to his retirement, the Veteran had significant decreases in work efficiency. The Board finds it probative that despite his psychiatric symptoms, the Veteran was able to maintain his work relationships sufficiently to remain stable in his employment for many years. Although the Veteran did indicate irritability, he never engaged in assaultive behavior. In other words, his irritability suggests some difficulty in establishing and maintain effective work and social relationships, but it was not productive of the complete inability to do so and thus was not otherwise indicative of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, as is required for the next higher evaluation of 70 percent. Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio v. Shinseki, 2012-7114, (Fed. Cir. Apr. 8, 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). The Veteran has not been shown to have symptoms equivalent in nature or severity to the criteria required for the next higher 70 percent rating during any period prior to October 22, 2007. There is no evidence of psychotic symptoms or cognitive deficits. In general, the Veteran was adequately groomed and able to take care of himself physically. The evidence also does not reflect suicidal thoughts during this period. Furthermore, the repeated assignment of a GAF score of 65 and 70 also supports the assignment of no higher than an initial 50 percent rating for any period prior to October 22, 2007. GAF scores ranging from 61-70 indicates "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, has some meaningful interpersonal relationships." See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 50 percent for an acquired psychiatric disorder prior to October 22, 2007. Therefore, the claim for an initial rating in excess of 50 percent for the period prior to October 22, 2007, must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. As of October 22, 2007 An October 22, 2007 VA mental health record reflects that the Veteran was having more difficulty with depressed mood and suicidal ideation. He did not have intent to harm himself, but he was alarmed that he had been dwelling on how he might do it. He still has his job, but he still has doubts about whether he will be able to keep the job. He has also been having more difficulty sleeping and has lost some weight. The therapist referred the Veteran for a medication evaluation to consider an antidepressant. The assessment was anxiety disorder, NOS. A February 2008 VA psychiatric evaluation report reflects that the Veteran's medication was increased six days earlier. His couple's therapist called earlier to express concern about the Veteran's poor sleep and how it seems to be affecting him. The Veteran was sleeping from 11:30 until about 1 am and lying awake in his La-Z-Boy for the rest of the night, watching the clock. After he gets up he returns to the chair several times throughout the morning before he goes to work. He does not sleep in his bed because the room was too cluttered, but they have cleaned this up now. He continues to feel a sense of dread and frustration about facing the world, and lies awake worrying incessantly about problems including his health. On mental status examination the Veteran was fidgety, tense-appearing, mood down, affect full range and superficially pleasant. Positive for occasional suicidal ideation with no intent/plan and some protective factors. Insight and judgment was good. He was assessed with major depressive disorder, severe; anxiety NOS and a GAF score of 52 was assigned. In response to depression screening, the Veteran was found to have a score suggestive of severe depression. The Veteran noted that nearly every days for the past two weeks he had little interest or pleasure in doing things, felt down, depressed or hopeless, had trouble falling or staying asleep or sleeping too much, feeling tired or having little energy, trouble concentrating on things such as reading the newspaper or watching television, and moving or speaking so slowly that other people could have noticed or the opposite being so fidgety or restless that he has been moving around a lot more than usual. For the past two weeks, the Veteran has had several days of poor appetite or overeating and thoughts that he would be better off dead or of hurting himself in some way. For the past two weeks, for more than half the days, the Veteran has felt bad about himself or that he was a failure or had let himself or his family down. These problems have made it very difficult for him to work, take care of things at home, or get along with other people. A February 2008 psychiatric evaluation report reflects that the Veteran reported that over the last year or so, he has had increase in his depressive symptoms, which seems to have been triggered by worsening physical problems initially. He reported worsening of his mood, loss of interest in most activities, chronic fatigue, decreased social involvement, difficulty concentrating with increase in mistakes at work, being more messy, and lying in bed inert most of the time. He describes onset of suicidal thoughts over the last several months. At one time, within the last month or two, he taped a plastic bag to the exhaust pipe on his car and had planned on asphyxiating himself. However, when he started to smell the car exhaust, he immediately stopped and turned off the car. He also has considered going out by a lake near his home and cutting his arm to bleed to death. He states that he has not been thinking of these plans as often recently. He denies any intent to act on such thoughts and identifies concerns about his family, as well as religious concerns as protective factors. He reports that he has experienced similar depressive symptoms at a much lower level for over ten years. He cannot identify any particular contributor to his longer term depression. He also reports particularly vivid and intrusive recollections of an event in Vietnam. The images come to him more often when he is idle and he works hard to avoid this by staying as busy as he can. His sleep is currently impaired and there are one or two days per week in which he feels he does not sleep at all. A good night currently is from three to four hours of sleep. He is not aware of having any nightmares, although he does wake up with panicky feelings on occasion. A review of systems was negative for symptoms consistent with mania, psychosis, substance abuse, panic disorder, or obsessive-compulsive disorder. A February 2008 VA mental health record notes that the Veteran was having serious symptoms of depression, including suicidal ideation, and at least at one point, a plan of how he could kill himself. He asked if we could hospitalize him if necessary. He denied he was suicidal today, he was not at danger to himself at this point. He did not feel he needs hospitalization immediately, he wanted to make sure it was available if his mood deteriorated further. A November 2010 VA mental health treatment plan notes that the Veteran was diagnosed with major depressive disorder, recurrent, and anxiety disorder, NOS. A GAF of 45 was assigned. Barriers to treatment included negative symptoms of apathy, amotivation, difficulty getting going, interpersonal/social anxiety, nervous in new situations, panic/agoraphobia, lack of insight into problematic symptom, behaviors, or illness, and history of poor adherence to treatment recommendations. A November 2013 VA examination report reflects that the Veteran is diagnosed with major depressive disorder, recurrent, with secondary anxiety symptoms, with symptoms in partial remission. A GAF score of 62 was assigned. The examiner found that the Veteran's condition results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. When asked about employability, the Veteran stated that he could do something " I suppose some of the lower stress jobs, not a lot of challenges, and something that could be flexible." The Veteran noted a preference to get out and keep active, both in performing purposeful work and in staying socially active. He has been able to participate in some volunteer activates, and activities in the community, church and at the VA medical center. He did not describe any significant impact in terms of social relationships. He noted his mental health symptoms were currently mild, which the examiner stated was supported by his mental health treatment records that indicated he has improved to the point that he was discharged from regular meetings with social workers and psychotropic medications were discontinued. He does appear to continue to be vulnerable to stress and will likely become overwhelmed easily. This would be a potential trigger for relapse in significant anxiety or depression symptoms. The Veteran described his marital relationship as stable, not great, but acceptable. He has three adult children with whom he has a normal to good relationship and occasionally babysits his grandchildren. He has occasional contact with two of his five siblings. He does not have any real close friends. He spends his time watching television and reading and tries to help out at some church event. Symptoms noted was chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran presented adequately groomed in casual dress. He appeared to be alert and well oriented. Vet's affect was somewhat tense. Logical and coherent thought and speech processes. The Veteran describes his typical mood as "stable." He denies feeling significantly depressed recently. He also denies feelings of hopelessness or suicidal ideation. Energy level is somewhat reduced; he also notes a tendency to procrastinate. No recent changes in weight/appetite. Self-esteem is "maintaining, doing okay." The Veteran reports he is somewhat concerned about his medical condition, but does not report significant anxiety or panic attacks. He denies significant anger or temper outbursts. The Veteran denied symptoms of psychosis such as auditory or visual hallucinations, delusional beliefs, or paranoia. Sleep is rather poor; he indicates trouble falling asleep and says he gets about five hours of sleep on average. Memory and concentration are somewhat reduced; he indicates a tendency to misplace personal items, relies on keeping a calendar to track activities, and has difficulty retaining material he has read. The examiner noted that psychological testing suggested significant psychological distress in stark contrast to the Veteran's self-report and recent medical treatment records. The test results were deemed reliable. A November 2014 VA psychiatric evaluation record reflects that the Veteran continued to be stable. He denied any depressive or psychotic symptoms. He continues to volunteer. He was alert, calm, cooperative, and well-groomed. Mood he indicated "I'm doing fine." Full range of affect, congruent. Denied psychotic symptoms and no evidence of suicidal or homicidal ideation, paranoid ideation or delusional thinking. Insight and judgement was fair. The psychiatrist noted that the Veteran has a history of depression and history of suicide attempts by carbon monoxide poisoning. However, he denies any suicidal ideation, intent or plan currently, states mood is stable, and appears to be connected socially. As such, the Veteran is deemed to be at low risk for imminent self-harm, but recognize he has chronic risk factors given history of multiple attempts. The diagnosis was anxiety disorder and major depressive disorder with psychotic features, in remission. Based on a thorough review of the record, the Board concludes that the evidence reasonably shows that the Veteran disability picture was comparable to a 70 percent rating beginning at the time of the October 22, 2007 VA medical record. The evidence shows that the Veteran's acquired psychiatric disorder symptoms had increased as of the October 22, 2007 VA medical record and continued thereafter to show greater severity than a 50 percent rating provides. Since October 22, 2007, the Veteran was shown to have psychiatric symptoms that included suicidal ideations, thoughts, and plans, hopelessness, chronic sleep disturbances, weight loss, impaired judgement and insight, difficulty concentrating, disturbances of motivation and mood and difficulties establishing and maintaining effective social and work relationships. However, the Board emphasizes that the symptoms associated with the Veteran's acquired psychiatric disability did not meet the criteria for the maximum 100 percent, rating at any time. A 100 percent rating requires total occupational and social impairment due to certain symptoms. However, the Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's acquired psychiatric disability. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran maintained a relationship with his wife, sons and grandchildren. He was able to be around other people, even if to a limited degree, and he was employed through February 26, 2009, when he retired. In addition, the Veteran had not been found to have any memory loss for names of close relatives, his own occupation, or his own name. While the Veteran has been found to have had some hallucinations, that symptom has been considered with the other symptoms during this period to support the grant of a higher 70 percent rating. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating. Accordingly, the Board finds that the criteria for a 70 percent rating, but not higher, for an acquired psychiatric disorder have been met effective October 22, 2007. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lastly, the Board finds that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating. 38 C.F.R. § 3.321(b)(1) (2014); Shipwash v. Brown, 8 Vet. App. 218 (1995). While the record shows that the Veteran has been hospitalized for his acquired psychiatric disorder, such has been compensated by a temporary total 100 percent disability rating for the appropriate period. There is no objective evidence showing that his condition has caused marked interference with employment beyond that anticipated by the assigned ratings. The rating criteria reasonably describes the Veteran 's disability level and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Therefore, the disability picture for his acquired psychiatric disorder is contemplated by the rating schedule, and the assigned schedular ratings are adequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2014). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2014). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2014). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2014). In light of the grant above, the Veteran is in receipt of a 70 percent disability rating for an acquired psychiatric disability as of October 22, 2007. Thus, the Veteran meets the minimum percentage requirements of 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran's service-connected PTSD cause him to be unable to secure or follow a substantially gainful occupation for the period prior to March 1, 2010. The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341 , 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Significantly, the Board points out that the Veteran was employed full time as a bookkeeper up until his retirement on February 26, 2009. See VA form 21-4192 received by the RO in March 2013. A March 2010 VA medical record notes that despite the Veteran's wish to get back to work, his vocational prognosis was guarded to poor given his mental health history and complete lack of insight into his condition. The diagnosis noted was major depressive disorder, recurrent, severe with psychotic features and generalized anxiety disorder. In a November 2013 VA examination report, the VA examiner opined that the symptoms of the Veteran's depressive disorder were not of such severity as to preclude him from working. The Veteran does report poor concentration and short-term memory difficulty, which would limit his productivity, efficiency, and ability to learn and retain instructions. He also appears to have limited coping skills, which would reduce his ability to tolerate stress. However, his self-report and recent VA mental health treatment records converge to indicate that his depressive disorder is largely in remission. (In fact, he noted that the Veteran is not taking any psychotropic medication at present.) Thus, the Veteran appears to be capable of working in a low stress capacity. In this case, applying the doctrine of reasonable doubt, the Board finds that the evidence of record is at least in equipoise that the Veteran is unable to obtain and maintain substantially gainful employment as of February 27, 2009. The Board finds probative that a March 2010 VA medical record specifically found that the Veteran's vocational prognosis was guarded to poor given his mental health history and complete lack of insight into his condition. Further, although the November 2013 VA examiner opined that the Veteran was capable of working in a low stress capacity, he found that the Veteran's psychiatric symptoms would limit his productivity, efficiency, ability to learn and retain instructions and that he had limited coping skills thereby reducing his ability to tolerate stress. Thus, despite the opinion of the November 2013 VA examiner, the Board finds the overall evidence supporting unemployability is at least in equipoise for the period beginning on February 27, 2009. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that for the period beginning on February 27, 2009, the criteria for a TDIU are met. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder for the period prior to October 22, 2007 is denied. Entitlement to a 70 percent rating for an acquired psychiatric disorder for the period beginning on October 22, 2007, excluding a period of a temporary total rating, is granted. Entitlement to a TDIU is granted as of February 27, 2009. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs