Citation Nr: 1647594 Decision Date: 12/21/16 Archive Date: 12/30/16 DOCKET NO. 11-09 969 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for anxiety disorder not otherwise specified (NOS). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected anxiety disorder NOS. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision in which the RO granted service connection for an anxiety disorder, NOS, assigning a 30 percent rating effective May 26, 2009. In October 2009, the Veteran filed a notice of disagreement (NOD) with regard to this denial. A statement of the case (SOC) was issued in March 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2011. The Board observes that, in May 2009, the Veteran submitted a VA Form 21-22 (Appointment of Veteran Service Organization (VSO) as Claimant's Representative) in which he designated the Veterans of Foreign Wars of the United States as his representative. In October 2012, the Veteran submitted a VA Form 21-22 in which he designated the Disabled American Veterans as his representative. The Board has recognized the change in representation.. In May 2014, the Board expanded the claim on appeal to include the matter of the Veteran's entitlement to a TDIU due anxiety disorder NOS as part and parcel of the claim for increase (consistent with Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)), and remanded both claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claims (as reflected in the February 2016 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. This appeal is now being processed utilizing the Veteran Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems). A review of the documents in Virtual VA reveals an April 2014 Informal Hearing Presentation submitted by the Veteran's representative. The remaining documents in such file are either duplicative of the evidence in VBMS or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Since the May 26, 2009, effective date of the award of service connection, the Veteran's psychiatric symptoms have included difficulty sleeping, nightmares, isolation, anxiety, and depression. Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. The schedular criteria are adequate to rate the Veteran's service-connected psychiatric disability at all pertinent points. 4. As the Veteran's anxiety disorder NOS has been and continues to be rated as 30 percent disabling, the percentage requirements for a schedular TDIU are not met. 5. The weight of the competent, probative evidence indicates that the Veteran's service-connected psychiatric disability, alone, has not prevented him from obtaining or retaining substantially gainful employment at any point pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for anxiety disorder NOS are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9413 (2015). 2. The criteria for a TDIU due to service-connected anxiety disorder NOS, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removed the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (here, the RO, to include the AMC)). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a July 2009 pre-rating letter, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service records; private treatment records; and September 2009, February 2011, November 2012, and December 2014 VA examination reports. Also of record and considered in connection with the claims are the written statements from the Veteran. The Board finds that no further AOJ action on either claim, prior to appellate consideration, is required. Pursuant to the Board's May 2014 remand, in August 2014 the AOJ sent the Veteran a letter requesting that he provide, or provide sufficient information to enable VA to obtain, additional evidence pertinent to his claims. Also, the AOJ scheduled the Veteran for a VA examination in December 2014 to assess the severity of his psychiatric disorder. Thereafter, the AOJ issued an SSOC reflecting the denial of the claim, followed by a waiver of the response period from the Veteran's representative (indicating that there was no further evidence or argument to provide) and a request that the matter be immediately returned to the Board. Under these circumstances, the Board finds that the AOJ has substantially complied with the prior remand directives with respect to the claim herein decided, to the extent possible, and that no further action in this regard is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A. Higher Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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. A 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). When an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award 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. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The rating for the Veteran's psychiatric disability has been assigned under Diagnostic Code 9413. However, psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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 a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit has 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. 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). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Historically, psychiatric examinations have frequently included assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation 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. See 38 C.F.R. § 4.126(a). [Parenthetically, the Board notes that the, revised DSM-5, which among other things, eliminates GAF scores, applies to cases certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014))]. Private treatment records dated in April 2009 from Dr. W.J.A., a neuropsychologist, document diagnoses of posttraumatic stress disorder (PTSD), depressive disorder NOS, and alcohol dependence with physiological dependency. Dr. W.J.A. interviewed the Veteran for approximately 120 minutes, and reviewed his DD-214 and his list of medications. The Veteran reported that he had experienced marked difficulties with supervisors and coworkers in his places of work, with a history of arguing with them. The Veteran stated that he had been married for 33 years before he divorced, and that he had two daughters with whom he was close, as well as grandchildren. He revealed that the only mental health treatment he had had was a couple of sessions with his wife, but that they decided not to continue with the sessions. He endorsed occasional intrusive thoughts, recurrent nightmares, sleep talking, and night sweats. He stated that his interest in activities had diminished, and that he was feeling detached and estranged from people. Dr. W.J.A. noted that he had marked problems with insomnia, irritability and angry outbursts, concentration problems, hypervigilance, feelings of worthlessness and guilt largely related to his apathy regarding most circumstances, and startled at loud noises. He endorsed suicidal ideations, but denied time frame or intent. He denied homicidal ideations, delusions, or hallucinations. He indicated that he had experienced two panic attacks in his life. Dr. W.J.A. noted that the Veteran's speech and thought process were normal, his impulse control was low as evidenced by his substance abuse, his affect was highly intense but stable during the evaluation, he was fully oriented, his concentration was normal, his memory was normal, and his judgment and insight were below normal limits. She assigned a GAF score of 39. A September 2009 VA examination report documents that the Veteran denied anhedonia, slept five hours per night, that his level of energy had declined with age, and that he did not endorse poor self-esteem and suicidal ideations at the time, although he had a history of such. The Veteran reported that he had been married for 33 years and was divorced, but that he had a close relationship with his two daughters. He stated that he kept in touch with two people with whom he served in Vietnam, but that he did not have any friends. He related that he drank six beers per day on weekdays and 12 beers per day on weekends. The examiner noted that he was clean, neatly groomed, appropriately dressed, and that his speech was unremarkable. He was hostile, irritable, and guarded towards the examiner; and had a constricted affect and nervous mood during the interview. His thought process and content were unremarkable, he denied delusions or hallucinations, and he did not exhibit obsessive ritualistic behavior or experience panic attacks. The examiner also found good impulse control, good personal hygiene, and normal memory. He diagnosed the Veteran with anxiety disorder NOS and alcohol dependence, and opined that he did not meet the DSM-IV criteria for PTSD. The examiner found that the Veteran's hypervigilance was associated with his anxiety disorder NOS, and that his problems with sleep and irritability could be due to his anxiety, his alcohol dependence, or a combination of both. He assigned a GAF score of 70 and noted that the Veteran's mental disorder was not severe enough to interfere with occupational and social functioning. A February 2011 VA examination report reflects that the Veteran divorced his wife after 33 years because he caught her cheating on him. He reported that one of his daughters lived in his house with her family and that he lived in a trailer on the same property. He related that he had a close relationship with his daughters and his grandchildren. The Veteran indicated that he "hated his job and would like to work for a good company as a driver." He reported that he drank and watched television, but that he did not socialize because he "lived in the middle of nowhere." The examiner noted that he was casually dressed, his speech was spontaneous, his mood was anxious, and he was fully oriented. He was hostile and irritable toward the examiner, but his thought process and content were unremarkable, and he denied any delusions or hallucinations. He stated that he slept four to five hours per night, and denied any obsessive rituals, panic attacks, or homicidal ideations. He reported that his last suicidal ideation had been five years ago and denied any current thoughts or plans. The examiner noted that his impulse control was fair, and the Veteran reported that he was "verbally aggressive toward everyone at work." The examiner diagnosed him with anxiety disorder NOS, alcohol dependence, and nicotine dependence. She opined that he was not unemployable, and that he had mild to moderate social inhibition due to anxiety-related symptoms. She stated that important social activities were "given up due to substance abuse or recovery from its effect." The February 2011 VA examiner also remarked on Dr. W.J.A.'s assignment of a GAF score of 39, noting that GAF scores between 31 and 40 reflected major impairment in several areas, and that patients with these score "most probably need inpatient treatment." However, she remarked that the Veteran had no history of hospitalizations, that his speech was goal-directed, and that there were no signs or symptoms of psychosis. She then noted that a GAF score of 41 to 50 indicated serious symptoms or serious impairment in social and occupational functioning, but that the last time the Veteran had been suicidal was five year ago, and that he had "been able to keep a job for many years ([over] five years, [and] about 15 years at another job)." She opined that the Veteran exhibited a GAF score of 60, which indicated moderate difficulty in social relationships. She noted that he reported that he had no friends, but that he had been married for over 30 years and divorced because he caught his wife cheating. She stated that the most likely reason for the Veteran's social impairment stemmed from his alcohol dependence, and that the reason for his "isolation" was financial difficulties and alcohol dependence. However, she noted that he was not "severely isolated since he had been able to maintain his job." In October 2012, a disability benefits questionnaire (DBQ) was again completed by Dr. W.J.A., who reviewed the Veteran's DD-214, his prior mental health contacts, and a list of his medication. She diagnosed the Veteran with PTSD, depressive disorder NOS, and alcohol dependence. She noted that his intrusive thoughts, hyperarousal, and other re-experiencing symptoms were due to his PTSD, and that his other symptoms were due to his depressive disorder. The Veteran reported that he resigned from his job in March 2011 after he had a verbal argument with his supervisor that he had hoped would turn physical. She noted that his severe angry outbursts, which resulted in a desire to fight, were due to his PTSD, and that he had a difficult history of conflict with coworkers. The Veteran reported that he had problems with job motivation, which Dr. W.A.J. found were attributable to depression. She noted that the Veteran was divorced and tended to stay at home, although he lived on the same property as his daughter with whom he had a good relationship. The Veteran also reported that he drank six beers a day during weekdays and 12 beers a day during weekends. Dr. W.A.J. noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, difficulty establishing and maintain effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. She opined that he had occupational and social deficiency in most areas, and assigned a GAF score of 39. A December 2014 VA examination report indicates that the Veteran lived alone in a trailer, and that his daughter and her family lived in his house on the same property. He reported having a good relationship with his daughter and grandchildren, and described them as supportive. He denied being in a relationship or having friends with whom he spent time, preferring to stay home. He stated that he visited the Veterans of Foreign Wars (VFW) intermittently, and that the last time was three months ago. He reported that in the summer he spent his time mowing his three acres property, and that otherwise he spent time on the internet. He did not experience any difficulties maintaining activities of daily living. He related that his oldest daughter, age 43, died last year, and that he discovered her body at his ex-wife's home. He reported that he continued to drink approximately eight beers a day, but denied any illicit drug use. The examiner noted depressed mood and anxiety. During the interview, the Veteran was alert and oriented in all spheres, and interacted in an appropriate and friendly manner with the examiner. He answered questions quickly, and showed good concentration and memory during the interview. Overall, the examiner found that the Veteran was calm and made good eye contact; and that his speech was fluent; adequately organized; and of normal volume, rate, and tone. His thinking was linear and there was no evidence of psychosis. His affect was euthymic but became depressed when disclosing his daughter's death, and he denied any current thoughts of suicide or homicide. His gross cognitive functioning was intact; and his insight, judgment, and impulse control appeared adequate. The Veteran reported experiencing significant daily anxiety and indicated he withdrew from others to avoid anger and confrontation. He reported that he currently experienced anger approximately three times a week, but that it "[did not] last that long." He also reported experiencing daily depressed mood and significant anhedonia, as well as difficulty concentrating "once in a while." She diagnosed the Veteran with of anxiety disorder NOS, and alcohol dependence; and noted that chronic alcohol dependence could produce or exacerbate symptoms of anxiety, depression, irritability, anger, and avoidance. The examiner also agreed with the February 2011 VA examiner's analysis that Dr. W.A.J.'s GAF assignment of 39 for the Veteran was not appropriate, and assigned him a GAF score of 55. Based on the consideration of the above-cited evidence, including the VA examination reports, private examination reports, and the lay statements of record, the Board finds that the collective lay and medical evidence indicates that an initial rating in excess of 30 percent for the Veteran's anxiety disorder a psychiatric disorder is not warranted. For the entirety of the period under consideration in this appeal, the evidence shows that the Veteran had a good relationship with both his daughters, as well as his grandchildren. While the Veteran was divorced, he specifically stated that he divorced his wife because she was cheating on him. Further, the Veteran was employed up until March 2011, when he resigned from his work because of an argument with his supervisor. While the Veteran stated in October 2012 that he resigned because he had wanted his verbal argument to turn physical, in December 2014, the Veteran stated that he "[became] angry with his boss who 'chewed him out' and told him to drive a certain way so he would arrive three minutes earlier" and that "he stayed angry over the weekend and decided it would be best not to return to work." In addition, while the evidence indicated that the Veteran did not have any friends, he stated that it was because he "lived in the country" and he preferred to stay at home. He has also kept in touch with two people with whom he served with, and visited the VFW intermittently. Further, while he reported in October 2012 that he had work conflicts with his coworkers, he was nevertheless able to maintain his last employment for six years prior to his resignation. In addition, he had clear and coherent speech, intact short-term and long-term memory, no signs or symptoms of delusions or hallucinations, normal judgment and thought process, and no panic attacks. While he endorsed past suicidal ideations, he stated that it had been at least five years, and that he did not have any current plans or intent. The above-cited evidence indicates the Board finds that, since the May 26, 2009, effective date of the award of service connection, the Veteran's psychiatric symptoms have primarily included depression and anxiety, nightmares, night sweats, and mild to moderate social isolation mainly due to his alcohol dependence and the fact he lives "in the country." Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest occupational and social impairment with occasional decrease in work efficiency-the level of impairment contemplated in the assigned,30 percent rating. While the Veteran experienced isolation, irritability, and nightmares, he has maintained a good relationship with his family and has not experienced impairment in judgment, abstract thinking, or panic attacks more than once a week. Further, while he resigned from his work in 2011, he did so not because he was not unable to work, but because he disagreed with what his supervisor required of him. The Board also acknowledges Dr. W.J.A.'s examinations of the Veteran in April 2009 and October 2012, and her opinion that the Veteran had occupational and social deficits in most areas. However, the evidence did not show that the Veteran had current suicidal ideations; obsessive rituals that interfered with routine activities; illogical, obscure speech; near-continuous panic attacks or depression; impaired impulse control (such as unprovoked irritability with violent periods); spacial disorientation; neglect of personal hygiene; or impaired short-term or long term memory. To the contrary, while the October 2012 DBQ shows that the Veteran endorsed suicidal ideation, he denied any suicidal ideations at his April 2009, February 2011, and December 2014 examinations. Specifically, in February 2011 the Veteran stated that his last suicidal ideation had been five years before, but that he had not had any plan or intent to follow through. Further, the Veteran did not exhibit obsessive rituals; his speech was fluent and coherent; he reported that he had had two panic attacks in his life and denied experiencing any at the time; he was fully oriented; his appearance was neat and well-groomed; and he had no memory problems. Finally, while he reported that he had a verbal argument with his supervisor and stated that he experienced conflicts with his coworkers, he denied any violent conduct at work or at home. Therefore, notwithstanding Dr W.J.A.'s c assessment, the Board cannot find that the Veteran has experienced symptoms of the type and extent, frequency and/or severity (as appropriate) to warrant a 50 percent rating. In this regard, the Board reiterates that the symptoms shown, and not an examiner's assessment, that provides the basis for the assigned rating. See 38 C.F.R. § 4.126(a). As the criteria for the next higher, 50 percent rating are not met, it logically follows that the criteria for the higher 70 percent rating or the maximum, 100 percent rating (for symptoms resulting in total occupational and social impairment), likewise, are not met. The Board further finds that none of the assigned GAF scores-39 (in April 2009 and October 2012), 70 (in September 2010), 60 (in February 2011), and 55 (in December 2014)-alone, provides a basis for any higher rating. Under the DSM-IV, GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 31 to 40 indicate some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant pointing toward psychosis process) or major impairment in several areas, such as work or school, family relations, judgement, thinking, or mood (e.g., avoids friends, neglects family, and is unable to work) The Board notes, initially, that the majority of the assigned GAF scores are consistent with no more than the 30 percent rating assigned. Arguably, the GAF score of 70 appears to reflect even less impairment than that contemplated in the assigned 30 percent, rating, whereas the GAF scores of 55 and 60 appear most consistent with the level of impairment contemplated in the assigned 30 percent rating. While, conceivably, the lowest GAF scores of 39 assigned in April 2009 and October 2012 suggest even greater impairment than that contemplated in the assigned rating, the February 2011 and December 2014 VA examiners explained why these scores were not appropriate. Specifically, the February 2011 VA examiner stated that patients with GAF scores of 31 to 40 required inpatient treatment and exhibited major impairments in family relations, judgment, thinking, or mood. The examiner noted that other than a couple of sessions of couples counseling, the Veteran had never had mental health treatment, that his speech was goal-directed, and that he had no signs or symptoms of psychosis. Further, he noted that the Veteran's last suicidal ideation was five year before, and that he was able to maintain employment for long periods of time as evidenced by his employment history. As such, the Board finds that while the Veteran was assigned GAF scores of 39 in April 2009 and October 2012, his GAF scores of 70.65 and 55, which denote mild to moderate symptoms, more closely reflect the severity of his symptoms during the period under consideration. In sum, the Board finds that, since the May 26, 2009, effective date of the award of service connection, the Veteran's psychiatric disorder has resulted in symptoms of the type and extent, frequency, and/or severity, as appropriate, to indicate the level of impairment contemplated in the schedular 30 percent, but no higher, rating. In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Vazquez-Claudio and Mauerhan, supra. As explained above, the Board has found that that the evidence of record simply does not show that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate), to result in the occupational and social impairment with reduced reliability enquired for a 50 percent rating, at any relevant time. Additionally, the Board finds that at no point since the May 26, 2009, effective date of the award of service connection has the Veteran's psychiatric disability been shown to be so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the AOJ or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's psychiatric disability at all pertinent points. As discussed above, the Veteran's predominant psychiatric symptoms impact his overall social and occupational functioning, and a comparison between the Veteran's symptoms and the criteria of the rating schedule indicates that the rating criteria reasonably describe his level of impairment. In this regard, all of the Veteran's psychiatric symptomatology is contemplated by the rating criteria, to include those symptoms, such as nightmares, which are not specifically enumerated. See Mauerhan, supra. Also, as indicated, the rating schedule provides for a higher rating based on evidence demonstrating more severe impairment. Notably, there is no evidence or allegation that the schedular criteria are inadequate to rate the disability. Furthermore, the Board notes that under 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. In this case, however, the Veteran's psychiatric disorder is appropriately rated as a single disability. As the evaluation of multiple disabilities is not here at issue, the holding of Johnson is inapposite. As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met, referral of the claim for extra-schedular consideration is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board concludes that there is no basis for staged rating of the Veteran's anxiety disorder NOS, and that the claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015).; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. TDIU The Veteran has asserted that his service-connected anxiety disorder NOS prevents him from securing or following a substantially gainful occupation. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability(ies). See 38 C.F.R. § 4.16(b). 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); see also 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, 4 Vet. App. at 363. The Veteran has been awarded service connection for a psychiatric disorder, to include anxiety disorder NOS, rated as 30 percent disabling from May 26, 2009. The combined disability rating for compensation was 30 percent from May 26, 2009. Accordingly, the percentage requirements for a schedular TDIU are not met. See 38 C.F.R. § 4.16(a). Nonetheless, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage ratings. . See 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence indicates that the Veteran's service-connected disabilities, alone, preclude gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance, and must, instead, refer the claim to the first line authority prescribed in section 4.16(b) for consideration of the Veteran's entitlement to an extra-schedular rating. .See Bowling v. Principi, 15 Vet. App. 1 (2001). The evidence of record reflects that the Veteran has an 11th grade high school education and worked in the food industry for 25 years and as a driver courier for six years. He has been unemployed since March 2011, when he resigned from his job following a dispute with his supervisor. An October 2012 private opinion by Dr. W.A.J. reflects that the Veteran resigned from his job because he had had a verbal argument with his supervisor, which he had hoped would turn physical. Dr. W.A.J. noted that the Veteran had severe angry outbursts resulting in a desire to fight, and that he had a difficult history of conflict with his coworkers. In addition, she stated that problems with job motivation were attributable to depression. She opined that the Veteran had occupational and social impairment with deficiencies most areas. A December 2014 VA examination report indicates that the Veteran opted "to retire after his supervisor verbally reprimanded him causing him to become angry." Specifically, the Veteran stated that he "[became] angry with his boss who 'chewed him out' and told him to drive a certain way so he would arrive three minutes earlier" and that "he stayed angry over the weekend and decided it would be best not to return to work." The examiner noted that the Veteran's difficulty with his employment was related to this supervisor, as his employment history reflected stable work prior to this position. The Veteran contended that he had not sought other employment as a driver in his rural location because he believed that he would not be able to earn enough money. The examiner noted that his reluctance to seek employment was not due to an inability to perform the demands of a position. Further, the examiner stated that "since the Veteran has not sought mental health treatment there is no objective evidence to support an inability to obtain or maintain gainful employment related to his anxiety disorder." Upon review of the record, the Board finds that the Veteran's entitlement to a TDIU is not established. As noted, the December 2014 VA examiner acknowledged the Veteran's difficulty at his last employment, but attributed it the Veteran's supervisor and not to the Veteran's inability to work. As evidence, she referred to the Veteran's long history of employment and his statements regarding his verbal disagreements with his supervisor. In addition, the examiner noted that the Veteran resigned from his work not because of his anxiety disorder, but because his supervisor reprimanded him and he became angry. Specifically, the Veteran reported that he spent the weekend thinking about the reprimand, and decided that it was best not to return to work. Further, the VA examiner indicated that the Veteran had not sought other work not because of his psychiatric disorder, but because he did not believe that he would earn enough money as a driver in his rural location. In addition, while Dr. W.A.J. noted that the Veteran experienced conflicts with his coworkers, and reported that he resigned after a confrontation with his supervisor that he wished had turned physical, she did not opine as to whether the Veteran was unemployable. Instead, she found that the Veteran had occupational and social deficiencies in most areas, which does not equate to an inability to maintain substantially gainful employment. Based on a review of the entire evidence of record, to include the lay statements of the Veteran and medical evidence of record, the Board finds that the competent, credible, and probative evidence weighs against a finding that the Veteran's include anxiety disorder NOS is or has been of such severity so as to preclude all substantially gainful employment. Accordingly, the Board finds that referral of the claim to the first line authority prescribed in 38 C.F.R. § 4.16(b) for extra-schedular consideration is not warranted, and that the claim for a TDIU must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and, hence, not helpful in this instance. See . See 38 U.S.C.A. § 5107(b); 3.102; see also Gilbert, supra.. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 30 percent for anxiety disorder NOS is denied. A TDIU due to service-connected anxiety disorder NOS is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs