Citation Nr: 1607616 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 10-11 252A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an increased rating in excess of 70 percent for anxiety neurosis. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from December 1977 to November 1978. He died in April 2015, and his widow has been substituted as the claimant in this matter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision, which denied TDIU, and an October 2009 rating decision, which denied an increased rating for anxiety neurosis, both of which were issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2012, the Board remanded the Veteran's claims for further development. As discussed below, that development has been completed. In June 2014, the Veteran submitted the medical reports of private examiners in connection with his claim and, in February 2015, waived agency of original jurisdiction review of the reports. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such evidence. The Veteran initially was the appellant but died in April 2015, during the pendency of this appeal. The appellant is his surviving spouse; she has been substituted as the claimant for the purpose of processing these claims to completion. The law was amended to permit substitution of claimants when the original claimant dies during the pendency of the claim or appeal. 38 U.S.C.A. § 5121A (West 2002 & Supp. 2013). The amendment applies to pending claims or appeals where the death occurred on or after October 10, 2008. Later in April 2015 the appellant's attorney requested substitution. See Fast Letter 10-30 (Aug. 10, 2010). In September 2012, the RO notified her that it would proceed with adjudication of the deceased Veteran's claims on the basis of her being substituted as the claimant. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected disability. 2. For the entire appeal period, the Veteran's anxiety neurosis was manifested as occupational and social impairment with deficiencies in most areas, to include suicidal ideation, near-continuous depression, neglect of personal appearance and hygiene, without more severe manifestations such as hallucinations, delusions, grossly inappropriate behavior, gross thought process or communications deficits, disorientation, and significant cognition and memory deficits that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). 2. The criteria for an increased rating in excess of 70 percent for anxiety neurosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As the Board's decision to grant a TDIU herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Concerning the Veteran's claim for an increased rating for anxiety neurosis, the VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on the claim for VA benefits. Here, in a May 2009 letter, sent prior to the October 2009 rating decision, the Veteran was advised of the evidence and information necessary to substantiate his increased rating claim, as well as his and VA's respective responsibilities in obtaining evidence and information. That letter also advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman. Relevant to the duty to assist, the Veteran's post-service VA and private treatment records have been obtained and considered. The Appellant has not identified any additional, outstanding records that have not been requested or obtained. In addition, the Veteran was afforded VA mental disorders examinations in May 2009 and January 2014. The Board finds these examinations to be adequate in order to evaluate his anxiety neurosis, as they include an interview with the Veteran and review of the record, addressing relevant rating criteria. Moreover, there has been no allegation that the Veteran's anxiety neurosis increased in severity since the last VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time not a basis for requiring of new examination). Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Appellant's claim and no further examination is necessary. In addition, under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Appellant's claim decided herein. Finally, the Board finds that there was substantial compliance with the Board's July 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008)(finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In July 2012, the Board remanded the case in order to afford the Veteran a contemporaneous VA examination to assess the nature and severity of his service-connected anxiety neurosis. Thereafter, in January 2014, the Veteran underwent a VA psychiatric examination. Therefore, the Board finds that there has been substantial compliance with the July 2012 Board remand directives such that no further action is necessary in this regard. See Stegall, supra; D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Appellant at every stage in this case, insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. TDIU The Appellant generally contends that the Veteran was unable to maintain employment due to his service-connected anxiety neurosis. A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis. 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(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For the entire appellate period, the Veteran was service-connected for anxiety neurosis, rated as 70 percent disabling. As such, he meets the threshold criteria for a TDIU. See 38 C.F.R. § 3.340. The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to this service-connected disability. In his April 2008 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he had worked full-time at a scrap yard from 1994 to 1997, and then part time from 1997 to 2001. He further indicated that he had not graduated from high school, but had completed school through the 11th grade. In May 2009, the Veteran underwent a VA examination related to his claim for an increased rating for his service-connected anxiety neurosis. At that time, the examiner noted that the Veteran experienced deficiencies in employment due to his service-connected disability. The Veteran was noted to be unable to work, as he lacked the motivation to do so. In his March 2010 substantive appeal, the Veteran acknowledged that he experienced significant non-service connected medical conditions, but indicated that it was his anxiety that prevented him from securing employment. Following the Board's July 2012 remand, the Veteran underwent a VA examination in January 2014. The examiner was asked to determine the functional impairments of the Veteran's service-connected anxiety disorder on his ability or inability to obtain and maintain substantially gainful employment. The examiner was also asked to provide an opinion as to whether it was at least as likely as not that the Veteran's anxiety disorder alone rendered him unable to obtain and maintain such employment. In response, the January 2014 VA examiner determined that the Veteran was not employable. As rationale, however, the examiner concluded that the unemployability was due to the Veteran's physical condition and not his anxiety disorder. The examiner opined that if the anxiety disorder was separated from the Veteran's multiple physical conditions, it would not interfere with his occupational abilities, as there had been no worsening of the anxiety disorder. In May 2014, the Veteran underwent a private examination regarding his claims and was examined by a psychologist and a vocational consultant. Following review of the record and an interview with the Veteran, the psychologist opined that the Veteran was unemployable, by reason of his service-connected anxiety disorder. As rationale, she indicated that the Veteran's anxiety rendered him unable to sustain the stress of a competitive work environment. In the past, she noted, the Veteran had multiple absences from work and difficulty getting along with coworkers, due to his anxiety disorder. She concluded that there would be no occupational options available to the Veteran. The vocational consultant provided a report that mirrored that of the psychologist. The consultant described the impairment of the Veteran's anxiety disorder on his ability to maintain substantially gainful employment. The consultant indicated that the Veteran would likely miss multiple days of work due to his disorder, which would render him unemployable. She also indicated that the Veteran would be unable to concentrate on, or finish, a work task due to his anxiety disorder. The Veteran experienced limitations in his mental ability to sustain work, and would not be able to perform at a substantial, gainful level of employment due to his service-connected anxiety disorder. Based on the foregoing, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that Veteran's service-connected disability rendered him unemployable. In this regard, while the January 2014 VA examiner indicated the Veteran's physical disabilities affected his employability, rather than his service-connected anxiety disorder, the remainder of the evidence suggests that the Veteran's service-connected disorder impacts all forms of employment available to the Veteran. Based on these factors, at the least, a reasonable doubt arises as to his employability, which must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disability and, as such, a TDIU is warranted. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. III. Anxiety Neurosis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board may consider whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's service-connected anxiety neurosis is evaluated under the criteria of DC 9411 and has been assigned a 70 percent rating, effective November 30, 2007. See 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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). In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)("DSM-IV")). Under DSM-IV, a GAF score of 41 to 50 reflects 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). A GAF score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 reflects 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, has some meaningful interpersonal relationships. The Board notes that a GAF score need not be accepted as probative if it is determined that the score does not reflect the overall psychiatric disability picture at the time of the examination. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). However, the probative value of the GAF scores will be considered in light of the other evidence of record. In a June 2008 VA mental health treatment note, the Veteran expressed passive suicidal ideation, in that he believed that if he started to use alcohol again-following a long period of sobriety-it would kill him, due to his health problems. When asked about a plan of suicidal action, the Veteran was noted to be ambivalent, refusing to answer either way. The examiner assigned a GAF score of 40 at that time. In an August 2008 VA treatment note, the Veteran reported that he exercised as much as he could, by golfing, mowing the lawn, and taking walks. A November 2008 VA Mental Health treatment note indicated the Veteran was observed with appropriate appearance and grooming. Veteran was alert and oriented, with memory and concentration grossly intact. He was upset and his affect was congruent with such a finding. The Veteran denied suicidal or homicidal ideation, and no hallucinations or delusions were reported. Examiner assigned a GAF score of 60. In a November 2008 treatment note from a private hospital, the Veteran expressed some suicidal ideation, in that he was experiencing a temptation to relapse and drink alcohol after a multi-year abstinence which, in light of his health issues, he believed would kill him. He described financial issues following his wife's recent job loss. The Veteran reported difficulty sleeping, poor appetite, low energy level, and difficulty concentrating. On examination, he was found to be well groomed and appropriately dressed. He was cooperative with a sad mood. The Veteran's speech was normal. He denied auditory or visual hallucinations, paranoia or delusions. Although endorsing passive suicidal ideation, he denied homicidal ideation of any kind. His judgment and insight were found to be impaired. At the time, the Veteran was assigned a GAF score of 20. At the time of his discharge four days later, the Veteran's mood had improved and was noted to be euthymic with full range of affect. His desire to drink was no longer present. His speech was normal, with no auditory or visual hallucinations noted. His thoughts were well organized and goal-directed. The Veteran denied suicidal and homicidal ideation, and was assigned a GAF score of 60. In a January 2009 VA mental health treatment note, the Veteran's grooming was found to be neat. There were no reported problems with memory. His mood and affect were noted to be bright, with connected thought content and no suicidal or homicidal ideation. There were no hallucinations noted during the session. The Veteran reported he had received good news concerning his ongoing health problems. He indicated that he planned to golf later in the afternoon. The examiner assigned GAF of 65. In a February 2009 VA Mental Health treatment note, the Veteran presented with a neat, well-groomed appearance. He was oriented times three, with no reported problems with memory. He expressed a bright mood, connected thought content, and a lack of suicidal or homicidal ideation. The Veteran indicated he was doing well, mentally, despite being upset by his health concerns. He was not depressed and was hopeful about a possible improvement in his health. The examiner assigned a GAF score of 65. In March 2009, the Veteran reported feeling overwhelmed due to physical and personal problems and was found by VA staff to be a medium risk for suicidal behavior. Thirteen days later, the Veteran was found to no longer be a significant suicide risk, as his coping skills had improved and he no longer reported suicidal ideation. In a May 2009 VA mental disorders examination, it was noted that the Veteran was hospitalized in November 2008 for anxiety. It was noted that the Veteran's physical health had worsened, leading to an increase in anxiety. The Veteran reported irritability and problems sleeping. An increase in depression and crying spells was noted. On examination, the Veteran was noted to be casually dressed, with clear speech and a cooperative, attentive attitude. His affect was normal, with an anxious and depressed mood. The Veteran was oriented to person and place, with unremarkable thought processes and content. Hallucinations and delusions were noted to be absent. The Veteran's behavior was appropriate, without obsessive or ritualistic behavior. A lack of homicidal and suicidal ideation was noted. The Veteran had no problems with activities of daily living, although it was noted that sometimes he needed his wife to remind him to bathe. Overall, his remote and recent memory were normal, and his immediate memory was impaired mildly, as the Veteran had problems remembering names. The examiner noted there was not a total occupational and social impairment due to mental disorder signs and symptoms. However, there were deficiencies in the Veteran' judgment, thinking, family relations, work and mood. These were attributed to the Veteran's declining health, to include his terminal prognosis of end-stage liver disease. Overall, the examiner assigned a GAF of 55. In multiple VA mental health treatment notes dated from March through October 2009, the Veteran was consistently found to alert and oriented, with memory and concentration intact. His thought processes were organized, interactive and spontaneous. He denied all suicidal or homicidal ideation, and hallucinations and delusional thought were absent. In a total of 21 VA treatment notes from this time period, 19 contained assigned GAF scores. Of those 19, 13 were GAF scores of 60; one was a GAF of 58; and 5 assigned GAF scores of 55. Throughout the treatment notes, the Veteran's thought processes were found to be clear, spontaneous and open. His appearance was consistently described as casual, with appropriate hygiene. [The Board notes that, in July 2009, VA treatment notes show suicidal ideation, which led to an admission to a private hospital, detailed below.] In August 2009, the Veteran described feeling that, despite his deteriorating physical condition, his mental attitude was more upbeat. In a September 2009 note, the Veteran described golfing, doing yard work, and having positive interactions with his adult children. Throughout the treatment notes, it was noted that the Veteran was aware of his declining physical health, and he often discussed the situation with his therapist. In July 2009, the Veteran was admitted into a private hospital for mental health treatment after expressing some suicidal ideation. On admission, the Veteran's appearance was noted as appropriate, with normal speech and a sad, depressed mood. His judgment was noted to be good and abstraction appropriate. The Veteran exhibited an awareness of his problems, and was oriented to time, place and person. He was alert, with racing thoughts. No hallucinations were noted. The Veteran's memory was, at best, fair at that time. He was experiencing a deterioration of his usual level of functioning and expressed a desire to light his bed on fire while lying in it, to kill himself. The Veteran was assigned a GAF score of 25 upon intake. The day after his admission, the Veteran was noted to be alert and oriented times three, with goal-directed, logical and sequential though processes. His affect at the time was blunted, and his mood depressed. The Veteran reported continuing suicidal ideation. His judgment and insight were poor, but his memory intact. He was noted to be well-groomed with good hygiene. The examiner assigned a GAF score of 35 at that time. Further VA mental health treatment notes from October 2009 to January 2010 continue to show the Veteran exhibited an appropriate level of grooming, with an alert orientation, intact memory and concentration, a stable mood and affect, organized thought processes and a lack of suicidal or homicidal ideation. There were no hallucinations or delusional thoughts expressed. Of the 11 treatment notes from this time period indicating a GAF score, all 11 reported GAF scores of 55. In a January 2010 treatment note, the Veteran indicated that it was his birthday and he was pleased with his family's observation of the day. Some anxiety was noted at times, but it was attributed to the Veteran's continually worsening health. In April 2011, the Veteran was hospitalized following a suicide attempt in which he intentionally overdosed on medication. The Veteran indicated that he had been having problems with his family, and concerns over his medical condition, and had been "impulsive" in the attempt. During his visit, he was consistently found to have normal thought processes, with either "questionable" or absent suicidal ideation. The Veteran was continuously found to be oriented times three, without audio or visual hallucinations. He was assigned a GAF of 15 on admission. In April 2013, the Veteran attended a VA support group. At that time, arrived on time for this scheduled group and was appropriately dressed. His personal appearance and hygiene were noted to be neat and clean. The Veteran was alert and oriented times 3. His behavior was noted to be friendly and cooperative. The Veteran's speech was of a normal rate and rhythm. His mood and affect were even. The Veteran's thought process was logical, focused and goal directed. The Veteran was able to participate in group discussion. Hallucinations and delusions did not appear to be present. The Veteran denied suicidal and homicidal ideation. He was assigned a GAF of 55. A May 2013 VA treatment note indicated the Veteran's appearance was clean. He was casually dressed, alert and oriented, with an affect that was congruent with content. The Veteran's sense of humor was noted to be present. His thought processes were organized, spontaneous, fluid and interactive. The Veteran's cognitive functioning was intact. At that time, he denied suicidal and homicidal ideation, and there was no evidence of any hallucinations or delusional thought processes. A GAF score of 60 was assigned. In a May 2013 VA group treatment note, the Veteran was found to be appropriately dressed, with a neat and clean personal appearance and normal hygiene. He was alert and oriented times 3, with friendly and cooperative behavior. His speech was normal, with an even mood and affect. The Veteran's thought process was logical, focused and goal directed. Neither hallucinations nor delusions were present. The Veteran was assigned a GAF score of 60. An October 2013 VA treatment note indicated the Veteran presented with a clean appearance and was casually dressed, alert and oriented. His affect was congruent with content and sense of humor present. The Veteran's thought processes were organized, spontaneous, fluid and interactive. His cognitive functioning was intact. The Veteran denied suicidal and homicidal ideation, and no hallucinations or delusional thought processes were present. His GAF score was 60. In December 2013, the Veteran was seen for a mental health appointment at VA. His appearance at that time was clean and he was casually dressed, alert and oriented. Again, his affect was congruent with content. The Veteran's sense of humor was present and his thought processes were organized, spontaneous, fluid and interactive. His cognitive functioning was intact. The Veteran denied suicidal and homicidal ideation, and no hallucinations or delusional thought processes were present. A January 2014 suicide prevention risk screen placed the Veteran at "moderate" risk, based on his history of 4 attempts in 10 years. Also in January 2014, the Veteran underwent a VA mental disorders examination. At that time, the Veteran was found to have occupational and social impairment with deficiencies in most areas. This impairment was attributed in whole to the Veteran's anxiety diagnosis, as he remained fully abstinent from alcohol and drugs at that time. The examiner noted the Veteran experienced a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, impaired memory, impaired judgment, disturbances of motivation and mood, an inability to establish and maintain effective relationships, suicidal ideation and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was also found to experience difficulty understanding complex commands, in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran was noted to have a cooperative, engaged and respectful demeanor, with normal speech. There was some memory loss, in that the Veteran would forget the subject being discussed and have to be brought back onto the topic at hand. The examiner indicated that the memory problems likely stemmed from the Veteran's recent medical issues, to include a hemorrhage. The Veteran was found to experience panic attacks less often than in the past. He was socially avoidant and anxious. The examiner noted the Veteran was no longer experiencing suicidal thoughts, although the Board notes that the examiner indicated earlier in the examination that such ideation was present. Overall, the VA examiner assigned the Veteran a GAF of 55. In May 2014, the Veteran underwent a private mental disorders examination. At that time, the examiner indicated that the Veteran's occupational and social impairment was total. She found that the Veteran experienced a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss but impairment of short and long-term memory, difficulty in understanding complex commands, disturbances of motivation and mood, establishing and maintaining effective work and social relationships and adapting to stressful circumstances. There was an inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. The examiner also found that the Veteran was in persistent danger of hurting himself or others, and had an intermittent ability to perform activities of daily living. On examination, the Veteran's attention was normal with varied concentration. Memory impairment was noted, but thought content was appropriate. No hallucinations were reported. The Veteran's mood was depressed and his affect restricted. He was found to be socially isolated and withdrawn. While he was able to perform household chores on a regular basis, the Veteran had to be reminded to bathe by his wife. The examiner assigned a GAF score of 50. Based on this evidence, the Board finds that a rating in excess of 70 percent for anxiety neurosis is not warranted at any time during the period covered by this appeal. Here, the Board finds that the Veteran does not display the level of mental impairment associated with the next higher 100 percent rating, and that his level of social and occupational functional impairment is not total. The 100 percent rating criteria provides example features of mental impairment such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. None of these have been reported by the Veteran or noted by clinicians and examiners. Overall, the Veteran was found to be able to fully communicate and displayed no inappropriate behavior. He reported spending time with his family and, at times, performing yard work and golfing, until his physical condition deteriorated. At no point was the Veteran found to experience memory loss so severe that he could not recall his name or that of family members. The Board notes that the record reveals the Veteran displays some of the criteria for a 100 percent rating. To that end, in the May 2009 VA examination, it was noted that the Veteran's wife had to remind him to bathe occasionally. In the May 2014 private examination, the examiner noted the Veteran had an intermittent inability to maintain minimal personal hygiene, and had to be reminded to bathe. In addition, some mild memory loss was noted in both the May 2009 and January 2014 VA examinations. However, these appear to be infrequent incidents, falling short of a "persistent" nature, and not resulting in the frequency, duration, and severity so as to render the Veteran totally socially and occupationally impaired. To that end, the Board notes that the Veteran's private examiner indicated that he experienced total social and occupational impairment. However, the Board finds that the bulk of the evidence-consisting of multiple mental health treatment records spanning a number of years, including two in-depth mental health examinations-counters such a finding. Rather, the Board finds that the entirety of the evidence of record clearly indicates that the Veteran's symptoms, as a whole, more closely approximate the criteria for his current disability rating of 70 percent. The Board acknowledges that the Veteran experienced a continuous anxiety and that such anxiety led to problems with his employment and, in some instances, his interactions with his family. The current 70 percent rating contemplates such significant mental health symptoms and the associated level of impairment. When considering the weight of the medical assessments, the Board finds that the effect of the symptoms of anxiety neurosis on the Veteran's occupational and social impairment is not total. Therefore, a rating in excess of 70 percent for anxiety neurosis is not warranted. In addition, the Board further finds that the assigned GAF scores capture the severity of the Veteran's overall disability picture. The Board also notes that the Veteran was assigned a GAF score of 20 in November 2008; scores of 25 and 35 in July 2009; and 15 and "21-30" in April 2011. Each of these scores was assigned at a period when the Veteran was experiencing some suicidal ideation or, in the case of the April 2011 scores, a suicide attempt. Therefore, as they reflect certain suicidal intent, the Board finds that these scores are outliers, and are consistent with the Veteran's assigned 70 percent rating, which contemplates suicidal ideation. In total, the bulk of the 49 GAF scores assigned to the Veteran over the period of the appeal ranged in number from 55 to 70, and he was most often assigned a score of 55. The Board notes that, under DSM-IV, a GAF score in the range of 51 to 60 reflects moderate symptoms or moderate difficulty in social or occupational functioning, such as having few friends or experiencing conflicts with peers or co-workers. The Veteran's overall symptomatology, described in detail above, indicates that he experienced moderate difficulty in social and occupational functioning. Such symptomatology is in line with the criteria for his assigned GAF scores. The Board finds that the Veteran's GAF scores are probative to the extent that they are consistent with his overall disability picture, which supports a 70 percent disability evaluation. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected anxiety disorder; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. The Board has also contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Federal Circuit provided guidance in rating psychiatric disabilities, emphasizing that the list of symptoms under a given rating is non-exhaustive. Vazquez-Claudio, supra. The psychiatric symptoms present in this case are either listed in the schedular criteria or are similar in kind to those listed, as discussed above. Review of the record does not reveal that the Veteran suffers from any symptoms of anxiety neurosis that are not contemplated in the non-exhaustive list of symptoms found in the schedular criteria. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, the Veteran's anxiety neurosis is appropriately rated as a single disability. As the evaluation of multiple disabilities is not here at issue, the holding of Johnson is inapposite here. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the matter of entitlement to TDIU has been addressed above and no further discussion is warranted. In sum, Board finds that the preponderance of the evidence is against the Appellant's claim for a rating in excess of 70 percent for anxiety neurosis. Therefore, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. A disability rating in excess of 70 percent for anxiety neurosis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs