Citation Nr: 1627708 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 13-23 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased initial evaluation in excess of 30 percent prior to January 15, 2009, and 50 percent thereafter, for general anxiety disorder. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) on a schedular basis prior to September 19, 2011. 3. Entitlement to a TDIU on an extraschedular basis prior to January 15, 2009. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from September 1963 to September 1967. This case initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board previously considered the Veteran's appeal for an increased initial evaluation for general anxiety disorder in June 2015, at which time the Board issued a decision awarding an evaluation of 50 percent for general anxiety disorder as of January 15, 2009, and denying in pertinent part the remainder of Veteran's increased initial evaluation claim. The Veteran then appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in an October 2015 order, granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the Board's June 2015 decision which denied an increased initial evaluation for general anxiety disorder, and remanding the claim for additional consideration. The Veteran's appeal is once again before the Board for appellate review. The issue of entitlement to a TDIU prior to January 15, 2009 on an extraschedular basis, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to January 15, 2009, the Veteran's general anxiety disorder results in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). 2. As of January 15, 2009, the Veteran's general anxiety disorder results in no more than occupational and social impairment with reduced reliability and productivity. 3. As of January 15, 2009, the Veteran meets the schedular criteria for TDIU; the competent and credible evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment as of this date. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent prior to January 15, 2009, and 50 percent thereafter, for general anxiety disorder have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9400 (2015). 2. Resolving reasonable doubt in the appellant's favor, the criteria for entitlement to a TDIU have been met as of January 15, 2009. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to assist the Veteran in locating and obtaining records has been satisfied. The Veteran has been afforded a number of VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2015). These VA examinations are adequate for the purposes of the instant appeal, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate discussion of relevant symptomatology and functional impairment. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). I. Increased Initial Evaluation Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that his service-connected general anxiety disorder is more severe than contemplated by the assigned evaluations. An initial 30 percent evaluation has been under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9400 (2015). The current 50 percent evaluation is effective from January 15, 2009. The issue of entitlement to an increased evaluation will be considered for both rating periods. See Fenderson, 12 Vet. App. 119. Diagnostic Code 9400 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, 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. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2015). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Parenthetically, the Board notes that references to the DSM-IV in the Schedule for Rating Disabilities have been replaced with references to DSM-V, which does not include GAF scores. However, as the instant appeal was pending prior to August 4, 2014, the Board will continue to consider the provisions of the DSM-IV, including GAF scores, in its consideration of the Veteran's claim. See 80 Fed. Reg. 14,308 (Mar. 19, 2015) The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Prior to January 15, 2009 As noted above, the Veteran has been assigned an initial evaluation of 30 percent for his general anxiety disorder prior to January 15, 2009. For the reasons discussed below, the Board finds the preponderance of the evidence is against the assignment of a higher evaluation at any point during this stage of the Veteran's appeal. The Veteran was assessed in September 2003 by Dr. D.A., a private psychologist and licensed trauma specialist. The Veteran appeared neatly groomed, had an appropriate breadth of affect, and was cordial and cooperative throughout the evaluation. He was fully oriented, thought processing was intact and he displayed no signs of hallucinations or delusions, without deficits in memory or judgment. Further, while the Veteran had a history of suicidal ideation and attempts, no such ideation was present at the time. Finally, while the Veteran experienced irritability, hypervigilance, and "some evidence" of exaggerated startle, these symptoms were noted to be greatly improved from the historical severe and incapacitating anger and explosive outbursts. In his conclusion, Dr. D.A. noted the Veteran has suffered "chronic, severe" posttraumatic stress disorder (PTSD) for a long time, but currently there continues to be only "residual impairment." At a July 2004 VA contract examination, the Veteran reported sleeping problems, irritability, and a difficulty with attention and concentration. While he did report nightmares, these were reported to be mainly about the guilt of his past failed marriages and his children as opposed to military experiences. He denied having any flashbacks, and talking about his military experience did not cause increased stress. He reported having a few friends that are supportive of him, and reported his fourth marriage was going "very well." While he reported a past history of suicidal thoughts and attempts, he denied having any at that time. Finally, while he reported a strained relationship with his children, he was not found to be detached from others and cares for people. On objective examination, the Veteran was cooperative, nicely dressed, made good eye contact, and demonstrated a restricted affect with anxious and worried mood. He was alert and oriented in all spheres, had an intact recent, intermediate, and remote memory, and adequate insight into his problems and fair judgment. He did demonstrate decreased attention and concentration, but was "in touch with reality" without delusions or auditory or visual hallucinations. Finally, his speech was clear and coherent, no flight of ideas, loosening of associations, tangentiality or circumstantiality. The examiner explicitly found the Veteran's general anxiety disorder to be "mild", and assigned a GAF score of 65, representing some mild symptoms or some difficulty in social or social functioning, but generally functioning pretty well with some meaningful interpersonal relationships. See DSM-IV. At an April 2007 VA examination, the Veteran appeared neatly groomed, thought was quite anxious walking through a very small corridor. He needed to leave the door open in the small testing room, and eventually turned the TV monitor so it would face the open door. His breathing appeared rapid and he was anxious during testing. When asked about his subjective complaints, the Veteran said he did not see himself as having mental health problems except for periods of episodic anxiety. He stated that he was "doing well" and "functioning well," and slept four to six hours per night. He reported no mental health treatment at the time. When asked about the frequency, severity, and duration of symptoms, he reported episodic frequency, especially if in closed small spaces. He reported the severity of his symptoms to be 4-5 out of 10. He reported he enjoyed performing ministerial work in prisons, and he did not think his psychological symptoms interfered with his social functioning. Finally, the Veteran reported having been married to his fourth wife for seven years, and that their marriage was "doing ok." On objective examination, the Veteran's speech was goal-directed without looseness of association. Reality testing appeared intact, and there was no evidence of psychosis, hallucinations, or delusions. Insight, judgment, and reasoning appeared average. His behavior was cooperative, but was mildly anxious during the initial part of the interview due to the small area. While he had depression in the past, he was not suicidal, and his dress and hygiene was casual and good. The examiner found the Veteran has a history of panic attacks, but had not had one in over a year, and was able to function quite well except when he is in enclosed small places where he cannot get out easily. A GAF score of 70 was assigned, representing some mild symptoms or some difficulty in occupational or social functioning. See DSM-IV. While the record includes an October 2008 VA examination report, this was a review of the record only in order to determine a proper diagnosis, and did not involve an examination of the Veteran. There are no other records or reports of record related to the Veteran's psychiatric disorder for the period prior to January 15, 2009. As noted above, a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), whereas a 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity. See 38 C.F.R. § 4.130, General Rating Formula. As discussed, while the Veteran had in the past suffered from severe impairment due to his psychological disability, at no point during the appeal period prior to January 15, 2009, did the Veteran suffer from more than mild or residual impairment. Significantly, the Veteran himself reported at the April 2007 VA examination that he did not believe his psychological symptoms resulted in functional impairment other than occasional episodic anxiety. While he had been divorced on three prior occasions, he maintained a successful marriage throughout this stage of appeal, and stated he has supportive friends and enjoyed ministering in prisons, clearly demonstrating minimal impact on the Veteran's social functioning during this stage of the appeal. While there was some impairment on occupational functioning, particularly related to concentration and occasional irritability, he was successfully employed as a real estate agent before moving in 2008 due to his wife's job. Having reviewed the evidence above, the Board finds that the Veteran's general anxiety disorder most closely approximates the impairment contemplated by the criteria for a 30 percent evaluation throughout the period prior to January 15, 2009. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation at any point prior to January 15, 2009. Therefore, an initial evaluation in excess of 30 percent is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As of January 15, 2009 VA treatment records dated January 15, 2009, notes the Veteran reported getting agitated easily, swearing, throwing things, and getting confrontational, though without physical fights "for years." He had fleeting suicidal thoughts, but was able to suppress them and at the time had no suicidal plans. He denied audio or visual hallucinations and paranoia, and reported sleeping six to seven hours a night with a good appetite. A VA mental health triage notes the Veteran reported depressed mood with decreased interest in pleasurable activities, and excessive anxiety and worry, but no manic symptoms. He also denied cognitive deficits and having panic attacks. He reported living with his wife of nine years, and having a prison ministry as a non-denominational minister. His speech was unremarkable, and thought processes and judgment grossly intact. He was assigned a GAF score of 55, indicating moderate symptoms resulting in moderate difficulty in social and occupational functioning, resulting in few friends and conflicts with peers or co-workers. See DSM-IV. Subsequent VA treatment notes indicate the Veteran's main goal was to manage his anxiety, and his medications seemed to help, an observation also noticed by his wife. At a March 2013 VA examination, the Veteran reported "rough times" in his marriage due to personality differences. He had severed his relationship with a daughter, and does not maintain communication with a son due to his alcohol problems, the Veteran maintained contact and fair relationships with his three other children. He remained actively involved in prison ministry, and relied on his spirituality as his therapy. He reported working 20 hours per week at a retail store, but noted concentration problems and an inability to multi-task, and also noted poor frustration tolerance with verbal outbursts toward his family. Objective examination revealed had symptoms of suicidal ideation, occupational and social impairment with reduced reliability and productivity, circumlocutory speech, circumstantial speech, difficulty in understanding complex commands, flattened affect, anxiety, chronic sleep impairment, depressed mood, mild memory loss, and panic attacks. The examiner noted the reported suicidal ideation involved passive fleeing thoughts of suicide with no plans or intentions to act on these thoughts. A GAF score of 60 was assigned, indicating moderate symptoms or any moderate difficulty in social, occupational, or school functioning. Ultimately, the examiner found that the symptoms caused occupational and social impairment with reduced reliability and productivity. In reviewing the evidence of record, the Board finds that an initial evaluation in excess of 50 percent is not warranted for this stage of the Veteran's appeal. In reaching this conclusion, the Board finds the Veteran's level of symptomatology throughout this stage of the appeal more closely approximates that contemplated by a 50 percent evaluation. While the evidence for this stage of the Veteran's appeal is somewhat sparse, records do not indicate the Veteran experienced symptomatology such as speech impairment, impaired impulse control or neglect of personal hygiene, hallucinations or delusions, disorientation to time and place or memory loss for names of close relatives, own occupation, or own name all symptoms congruent with evaluations higher than 50 percent. Significantly, the Board has not limited its review to the symptomatology outlined in the General Rating Formula. Instead, the Board finds that the Veteran's general anxiety disorder most closely approximates occupational and social impairment contemplated by a 50 percent evaluation. While the Veteran did report some decline in his personal and social relationships, he maintained fair contact with three of his children and actively participated in prison ministry, indicating a capability of maintaining such relationships. Further, the Veteran was able to maintain some level of employment despite his reported symptomatology. The Board acknowledges the part-time employment may not rise to the level of gainful employment; however, this aspect as it relates to employability is discussed with regards to entitlement to a TDIU below, and the evidence reflects the Veteran was capable of maintaining employment involving public interaction. Finally, the VA examiner specifically found that the Veteran's level of symptomatology results in occupational and social impairment with reduced reliability and productivity, congruent with a 50 percent evaluation. In light of the evidence outlined above, the Board finds that the evidence does not support the assignment of an initial evaluation in excess of 50 percent at any point as of January 15, 2009. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an increased initial evaluation at any point as of January 15, 2009. 38 U.S.C.A. § 5107(b) ; Gilbert, 1 Vet. App. at 55 (1990). Additional Considerations The Board acknowledges the Veteran's contentions that his service-connected anxiety disorder warrants an increased evaluation throughout the appeal. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected anxiety disorder. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board has taken into consideration a December 2015 psychological review report submitted on behalf of the Veteran, which concluded the Veteran's general anxiety disorder resulted in occupational and social impairment with deficiencies in most areas, asserting a 70 percent evaluation is warranted throughout this period. However, the "severe symptoms" cited in support of this opinion, including suicidal ideation (including three attempts), irritability and "explosive anger," and "a detached relationship style" are not supported by the medical evidence generated at any stage of the appeal. While the Veteran did suffer from such severe symptomatology in the past, it is clear from the evidence of record that his condition had improved prior to current appeal period. For instance, the suicide attempts described by the private psychologist occurred in the 1960s and 1970s, approximately 30+ years prior to the appeal period, and the Veteran has consistently denied suicidal ideation prior to the March 2013 VA examination, and even at that point such ideation was passive in nature and the Veteran reported he would not act on these ideas. Further, the October 2003 private evaluation specifically noted the Veteran's "severe and incapacitating" anger manifested as "explosive outbursts" had occurred in the past, but had since improved. The December 2015 report does not at all mention the Veteran's own reports that his psychological disorder does not really impair his social functioning, or that while his marriages had failed in the past (prior to the appeal period), his current marriage was going "ok" and "very well." Further, the private psychologist does not discuss the GAF scores assigned throughout the appeal, which consistently support a finding of mild to moderate impairment caused by general anxiety disorder. In other words, the December 2015 psychological review relies far too heavily on symptoms reported as much as 30 years prior to the appeal period, and does not sufficiently discuss the evidence generated during the appeal period which would tend to weigh against the opinion provided. As such, the Board finds the December 2015 private psychological report is inconsistent with the evidence of record and therefore has assigned it little probative value. See, e.g., Miller v. West, 11 Vet. App. 345, 348 (1998) (a conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. The rating criteria pertaining to psychiatric disabilities contemplate the symptoms experienced by the Veteran, including but not limited to depression, anxiety, passive suicidal ideation, and irritability, and evaluations under the General Rating Formula are based on the impairment such symptoms have on the Veteran's occupational and social functioning. The medical evidence fails to show anything unique or unusual about the Veteran's condition that would render the schedular criteria inadequate. Further, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Referral for consideration of an extraschedular rating is not warranted either based on symptoms related to service-connected general anxiety disorder, or on a disability that can be attributed only to the combined effect of multiple conditions. See Thun v. Peake, 22 Vet. App. 111 (2008); see also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). II. TDIU prior to September 19, 2011 Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). In reaching such a determination, 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, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2) (2015). A total rating has been assigned effective September 19, 2011. As of January 15, 2009, the Veteran is service-connected for, among other disabilities, general anxiety disorder evaluated as 50 percent disabling. Combined with other service-connected disabilities, his overall disability evaluation is 70 percent. The Veteran is therefore eligible to receive TDIU benefits on a schedular basis as of January 15, 2009. See 38 C.F.R. § 4.16(a). For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation as of January 15, 2009. Significantly, in July 2013, the Veteran submitted an assessment, which was rendered by D.P., a vocational expert. In this opinion, D.P. reviewed the Veteran's entire claims folder, and discussed at length his service-connected disabilities, and medical/functional capacity. Ultimately, D.P. opined that it is at least as likely as not that the Veteran's service-connected disabilities have prevented him from securing and following a substantially gainful occupation. In this regard, D.P. notes the Veteran's sporadic and marginal employment was related in large part to his service-connected anxiety disorder. Based on the opinion of D.P., the Board finds that TDIU is warranted as of January 15, 2009, the date at which the Veteran meets the schedular criteria for TDIU, as the overall weight of the evidence is at least in equipoise as to whether his service-connected disabilities precludes him from performing the physical and mental acts required by employment. In finding in favor of the Veteran, the Board has considered the negative VA opinions of record. However, "[a] Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. As such, with the evidence at least in equipoise, and resolving all doubt in favor of the Veteran, the Board finds entitlement to a TDIU is warranted as of January 15, 2009. ORDER An initial evaluation in excess of 30 percent prior to January 15, 2009, and 50 percent thereafter, for general anxiety disorder is denied. Entitlement to a TDIU is granted as of January 15, 2009. The appeal is allowed to this extent subject to the law and regulations governing the award of monetary benefits. REMAND The Veteran asserts entitlement to TDIU due to his service-connected disabilities. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned on an extraschedular basis pursuant to the procedures set forth in 38 C.F.R. § 4.16(b). Such cases are to be referred to the Director, Compensation Service for consideration of an extraschedular evaluation. Id. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In the instant case, the Veteran has provided evidence, in the form of a July 2013 private vocational assessment, that his service-connected disabilities have rendered him unable to obtain or maintain gainful employment "since at least" July 2004. However, as discussed above, the Veteran does not meet the schedular criteria for assignment of a TDIU prior to January 15, 2009. In light of the July 2013 opinion, this portion of the Veteran's appeal must be remanded for referral of the claim for TDIU prior to January 15, 2009, for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Refer the appellant's TDIU claim prior to January 15, 2009, to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. §4.16(b) (2015). 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs