Citation Nr: 1806615 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-35 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected anxiety disorder for the period prior to July 8, 2014. 2. Entitlement to an effective date prior to July 8, 2014, for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision, which granted service connection for an anxiety disorder, not otherwise specified (NOS), claimed as posttraumatic stress disorder (PTSD) with alcohol abuse, and assigned a 30 percent evaluation, effective May 24, 2002. In June 2010, a videoconference hearing was held before the undersigned Veterans Law Judge at the Milwaukee, Wisconsin, RO. A transcript of this proceeding has been associated with the claims folder. In July 2010, the Board increased the evaluation assigned to the Veteran's service-connected anxiety disorder to 50 percent and remanded the issue for further development. In an October 2010 rating decision, the RO implemented the Board's decision by increasing the Veteran's service-connected anxiety disorder to 50 percent, effective May 24, 2002. Additionally, the Board notes that the RO denied entitlement to a total disability rating for compensation based on individual unemployability (TDIU) in a November 2008 rating decision. The Veteran did not appeal the denial of this claim to the Board. However, in the January 2012 Appellant's Post-Remand Brief, it was requested that consideration be given to individual employability. As such, the Board found that the Veteran had raised the issue of entitlement to TDIU since the November 2008 rating decision was issued. In a March 2012 decision, the Board denied entitlement to a rating in excess of 50 percent for an anxiety disorder and denied entitlement to a TDIU. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 Order, the Court vacated the March 2012 Board decision denying entitlement to an initial rating in excess of 50 percent for an anxiety disorder and denying entitlement to a TDIU and remanded the matters to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In September 2014, the Board remanded these issues for additional development. In a December 2014 rating decision, the Appeals Management Center (AMC) granted entitlement to a TDIU and increased the Veteran's evaluation for anxiety disorder NOS to a 70 percent disability rating, effective July 8, 2014, the date of the most recent VA medical examination. In a May 2015 decision, the Board denied entitlement to an initial evaluation in excess of 50 percent for the period prior to July 8, 2014 and an initial evaluation in excess of 70 percent for the period since July 8, 2014 for service-connected anxiety disorder. The Veteran appealed the May 2015 Board decision to the Court with regards to the denial of an initial evaluation in excess of 50 percent for the period prior to July 8, 2014. In February 2017, the Court issued a Memorandum Decision that vacated the May 2015 Board decision with regards to the denial of an initial evaluation in excess of 50 percent for the period prior to July 8, 2014 and remanded this claim and a claim to an effective date prior to July 8, 2014, for the grant of a TDIU, to the Board for further development. FINDINGS OF FACT 1. For the period prior to July 8, 2014, the Veteran's service-connected anxiety disorder was manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment was shown. 2. Prior to July 8, 2014, the Veteran was service connected for anxiety disorder at a 50 percent disability rating. He had a combined rating of 50 percent from July 8, 2014. 3. The Veteran did not meet the schedular criteria for TDIU prior to July 8, 2014, and the evidence during this period does not suggest that his service-connected disability rendered him totally unable to secure or maintain substantially gainful employment so as to warrant consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for service-connected anxiety disorder for the period prior to July 8, 2014 have not been met. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 9434 (2017). 2. The criteria for an award of a TDIU prior to July 8, 2014 have not been met. 38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by June 2007 and March 2013 letters. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings 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 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his anxiety disorder. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In this case, the RO granted service connection for an anxiety disorder and assigned an initial 30 percent disability evaluation, effective May 24, 2002 under Diagnostic Code 9413. As noted above, in July 2010, the Board increased the evaluation assigned to the Veteran's service-connected anxiety disorder to 50 percent and in an October 2010 rating decision, the RO assigned the 50 percent rating, effective May 24, 2002. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 50 percent rating requires 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. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affected 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 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 more moderate symptoms [e.g., flat affect and circumstantial speech, occasional panic attacks] or moderate difficulty in social, occupational, or school functioning [e.g., few friends, conflicts with peers or co- workers]. Scores ranging from 41 to 50 reflect serious symptoms [e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting] or any serious impairment in social, occupational or school functioning [e.g., no friends, unable to keep a job]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran's claim was certified to the Board prior to this date, the amendment is not applicable, and as such, the DSM-IV applies to the Veteran's claim, and it is appropriate to consider GAF scores as a factor in assessing the severity of his psychiatric disorder. Factual Background and Analysis A February 1984 private treatment note indicated that the Veteran reported experiencing nervousness and paranoia. He noted that he last tried to work as a security guard in the summer of 1983 but lost the job as he was becoming too suspicious of other people and quit. On examination, there was no evidence of delusions or hallucinations. He was oriented in all spheres. The diagnosis was chronic PTSD. In July 1991, the Veteran was found to be totally disabled by the Social Security Administration (SSA) as a result of his physical and psychological disabilities. On his May 2002 claim for service connection for a psychiatric disorder, the Veteran reported that since service he had experienced paranoia and would hear people talking when no one was there. A July 2003 VA mental health clinic assessment reflects that the Veteran talked tangentially about a number of family members, acquaintances, and friends whom the Veteran felt had not been supportive since his mother's death. The Veteran had two adult children, but he was not close with them and did not see them often. It was also noted that he and his sister had never been close and that they had been completely estranged since the death of their mother. Another July 2003 record reflects that judgment and insight appeared limited on examination. A March 2004 VA medical record notes that the Veteran was estranged from a number of family members and was experiencing symptoms of depression and passive suicidal ideation following the death of his mother. A March 2005 VA medical record notes that the Veteran had occasional nightmares but usually pleasant dreams about his mother. He denied significant depression and reported that he worried about things. An August 2005 VA medical record noted that the Veteran was relatively socially isolated, felt lonely, and is without too many friends. A February 2006 VA treatment record provided a GAF score of 55. It was noted that anxiety and sleep were the main components of his presentation. The diagnosis was dysthymic disorder and anxiety disorder with features of social phobia and PTSD. The Veteran reported nightmares relating to airplanes, social isolation and thoughts of "somebody in the bushes". A May 2006 VA medical record notes that the Veteran showed poor judgment, as he was externalizing blame. He was social when he was young but started to become nervous around groups of people and began isolating more. It was noted that he is now relatively socially isolated, felt lonely, and did not have many friends. In a December 2006 VA treatment record, the Veteran reported feeling down but not to the point where he wished that he were not alive or having suicidal ideation. A March 2007 VA medical record noted that the Veteran had some features of social phobia. At his April 2007 hearing, the Veteran testified that he experienced hearing people whispering at him. The Veteran underwent a VA examination in November 2007, and an addendum was provided in December 2007. The Veteran described a variety of mild to moderate changes in his psychological functional status and quality of life following his reported in-service trauma. The Veteran reported that he felt "paranoid" and did not socialize because being around people scared him. He stated that he had been scared that people were looking through the window at him for years. The Veteran was noted to not have worked since his VA benefits were granted in late 1990, but it was suggested that he may have stopped working because his benefits were granted. He kept up with routine responsibilities of self-care. His recreation/leisure pursuits were noted to appear adequate. Symptoms of mild to moderate persistent re-experiencing, avoidance, and increased arousal warranted the diagnosis of anxiety disorder not otherwise specified, but did not justify a PTSD diagnosis. The examiner opined that the Veteran's anxiety disorder pre-existed service but was aggravated by his military service. The examiner also diagnosed dysthymia and alcohol dependence in sustained full remission and found both of these conditions to be less likely than not related to service. It was noted that the Veteran's depression was of mild to moderate severity and was fairly well managed with medications. The examiner opined that the Veteran's PTSD symptoms would pose mild to moderate difficulties for him in a typical work setting. The December 2007 addendum endorsed the November 2007 opinion but noted that the Veteran's psychological testing results suggested that he may have exaggerated his symptoms. Disturbances in mood are indicated in a February 2008 record that notes the Veteran reported feeling irritable around other people. He also reported relative social isolation and that he avoided contact when he sees people. Judgment deficits were also noted in a June 2008 record. A GAF score of 50 was provided. At his June 2010 hearing, the Veteran reported that he was on medication for daily anxiety and panic attacks. He reported he had suicidal ideations once in a while and that he did not like crowds. He also reported that he had paranoid thoughts, such as thinking people are watching him or snipers are after him, that caused him to stay in. He also reported that he has some local family members with whom he was close. He reported that he has anger issues and did not go out when he felt like he was going to choke or punch someone, but he also reported that he had not become violent with anyone in the past few years. The claims file also contains an August 2010 statement from the Veteran's cousin, who attested to the Veteran's mood swings and anger problems. It was also asserted in this statement that the Veteran had panic attacks every day and forgot family names. The Board notes that the Veteran underwent a VA examination in December 2010. The Veteran reported that he thought about Vietnam two or three times per month and that, while his thoughts about Vietnam used to be upsetting, his symptoms were improved if he stayed busy. The Veteran reported that he was not able to watch war movies and he avoided people talking about war. He reported that he did not like crowds and that he spent little time with others in his building. He had the curtains drawn much of the time. The Veteran reported that he used to enjoy painting but he does not have patience to do so anymore. He reported that he got irritable more easily and that he had decreased interesting in singing, which he also used to enjoy. He reported that he felt detached from others. He had love for his family. He did not think about the future but did not feel that it would be shortened in any way. He continued to have difficulty with anger and said that he did not go out as a result. He was not particularly hypervigilant. He startled easily. He reported mild panic attacks if he is out of something at home and needed to go to the store. He reported that his memory was largely intact. He may lose concentration at times and he often started books but did not finish them. He was able to read a short newspaper. The Veteran reported that he had not spoken to his ex-wife since he was divorced in 1996. He did not get along well with his children and had no relationship with them now. He reported that he did not connect like he used to. The Veteran reported that he had difficulty concentrating when he was at work, and he also had anger problems with people in authority. The Veteran reported that he had current mood swings. He felt depressed much of the time. His energy level was about 50 percent, which was good for him. He felt worthless 50 percent of the time. He had no significant feelings of guilt but often thought about his situation in Vietnam and detachment from people. The Veteran reported that he last worked in 1990. When asked as to why he was not able to work, he said that his mind did not focus. He reported that he has had a number of appeals to the VA and Supplemental Security Income (SSI) though the years. He reported that he was on disability for depression and HIV, and that he has received a pension since 1992. The Veteran lived in a senior citizen building. He managed his finances independently but stated that he had difficulty in that regard. The examiner noted that the Veteran was casually dressed and had a friendly demeanor. He was tangential in conversation, but there were no paraphasic errors or language difficulties noted. Grammar was adequate. Insight into his condition appeared mildly reduced. His affect was flat. He had some evidence of thought disorder when discussing a history of thinking that aliens were going to come and take him. He said that he had not had suicidal ideations lately. He denied any legal history. The examiner noted that the Veteran endorsed symptoms of severe level anxiety on a self-report measure. He also endorsed symptoms of PTSD that fell above the clinical cutoff. The examiner concluded by noting that, by his report, the Veteran had symptoms of severe level anxiety. However, when compared to previous and recent psychiatric examinations, no indication of anxiety was mentioned. In addition, the Veteran stated this psychiatric functioning was relatively stable during his August 2010 appointment. By his description, he had a number of contacts with psychiatrists throughout the years, and his diagnosed anxiety disorder appears justified. His symptoms of PTSD appeared best captured in a generalized anxiety disorder. The Veteran may have exaggerated some of the symptoms on self-report questionnaires, as he failed to endorse significant symptoms of anxiety during the assessment. The examiner noted that the Veteran had not worked since 1990, and that fact alone would make it difficult for him to return to the work force presently. He was likely, however, to be able to perform structured work, as he was reportedly completing volunteer work at the senior citizen building at which he resided. It is likely that he would have difficulty working with others, but if he was provided an isolated environment, which would minimize his tendency to get angry with others, the Veteran may have a reasonable chance of maintaining employment. Overall, the Veteran's chances of returning to independent employment were poor, but it appeared possible that he could work if he is given the right environment and structured setting. A GAF score of 60 was assigned. The Veteran underwent a VA examination in April 2012. The examiner indicated that the Veteran had a diagnosis of anxiety disorder NOS and assigned a GAF score of 55. The examiner opined that the Veteran's level of occupation and social impairment with regard to all mental diagnoses was best described as occupational and social impairment with reduced reliability and productivity. The Veteran continued to live in a senior citizens building and was able to manage his finances independently with some difficulty. He maintained little contact with family members as some had died and he was estranged from others. He reported that on most days he napped and took walks in the community. 3 to 4 times per month there were periods when he was down, did not want to leave the house and avoided interacting with his neighbors. He indicated that he had made some attempts to return to painting and had started doing some drawing. The Veteran had been unemployed since 1991. He had some difficulty articulating why he had not worked since then but did indicate that he felt "angry" all of the time. He had been volunteering through his Senior Living Center but stopped doing this in January 2012 due to stress. He had symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, and circumstantial, circumlocutory or stereotyped speech. He also had anger outbursts and periods of isolation. The Veteran underwent a VA psychiatric examination in October 2012. The examiner noted that the Veteran had a diagnosis of anxiety disorder NOS. A GAF score of 55 was assigned. The examiner opined that the Veteran's level of occupation and social impairment with regard to all mental diagnoses was best described as occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was alert and oriented to person, place, time and purpose. He had good grooming and hygiene and appeared his stated age. Eye contact was good and no idiosyncratic behavior was noted. Speech was of normal rate and rhythm. Thought processes were relatively well organized and goal-directed with no evidence of a thought disorder reported or detected. However, the Veteran was quite tangential at times and needed redirection to stay on topic. His mood appeared mildly dysthymic with congruent, somewhat flat affect. He denied suicidal or homicidal ideation, plan or intent. His insight and judgment appeared to be fair to good. Concentration and attention were noted to be adequate. His overall level of effort and cooperation during the interview were judged to be adequate. He continued to live alone in an apartment complex. He had been divorced since 1996 and had 2 children. His daughter died a few years ago and he had not spoken to his son since 2002. He did keep in contact with his sole surviving sibling and her children. He also noted some close relationships with extended family members living locally including a niece and a cousin who would visit regularly and help with household chores including cleaning and shopping. He had a best friend in Cleveland who he spoke with once a week on the telephone. He noted being "friendly" with people in his building and at church though he usually only saw them in passing. His daily activities included managing his medical problems, household chores and watching sports. He used to exercise some but the pain in his feet interfered with this. He noted that he could be easily irritated in social situations so he tended to avoid them if possible though he had participated in a few social outings sponsored by his apartment complex that he seemed to enjoy. He also attended church on a weekly basis and believed that the benefits of attending have included reduced anger/irritation toward others. The examiner noted that the Veteran had not worked or completed any education since his last examination. He was no longer volunteering in his apartment complex as he had quit in January 2012 as it had gotten too stressful. He reported that he last worked in 1991 as a security guard. This job lasted only 3 weeks and he indicated that he left the job because he was threatened by a coworker. After he last worked, he had cared for his elderly parents and an aunt by helping them manage their chronic medical problems up until their deaths. Prior employment included a number of general labor positions including a cook and an office/building cleaner. On examination, the Veteran indicated that he was both depressed and tense. He denied any anhedonia, appetite problems or suicidal ideation but endorsed varying energy levels, occasional feelings of worthlessness, sleep problems and memory concerns. He also experienced panic attacks on a weekly basis which were usually triggered by social situations so he tended to isolate and leave his apartment when necessary. Anger outbursts also continued to be another one of his primary concerns. He had symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and circumstantial, circumlocutory or stereotyped speech. The examiner opined that the Veteran continued to meet the criteria for anxiety disorder NOS and his current functional impairment was judged to be moderate. He had been able to maintain good relationships with some of his family and one close friend and had participated in and enjoyed several social outings sponsored by his apartment complex. At the same time, the Veteran reports periods of isolation and avoidance of social situations to help manage anxiety and reduce instances of anger outburst which tended to happen in social settings. The Veteran clearly suffered from significant distress due to his symptoms and clearly devoted considerable energy into coping with them every day. He was actively engaged in psychiatric medication management with good results. With regards to employability, the examiner opined that it was likely that the Veteran's symptoms may reduce reliability and productivity and make it more difficult for the Veteran to carry out complex tasks and get along with coworkers and supervisors. However, they alone would not preclude the Veteran from work in certain fields of labor. It was evident that the Veteran would likely not do well in a highly socialized work setting but may function better with the structure and responsibility of a routine work day, particularly in an environment where he was able to work on his own or with a few trusted colleagues. Despite reported memory and concentration difficulties, the Veteran continued to manage his own chronic complex medical health problems adequately with the assistance of compensation technique reminders. Thus, similar strategies could be used to help him learn and carry out job-related duties. The examiner concluded that even though the chances of the Veteran returning to substantially gainful employment may be poor, it appeared that he could work if given the right occupational environment, structured job duties and supervision. A July 2013 VA treatment note reported that the Veteran's mood was "okay". He was able to sleep and was not depressed. A November 2013 VA treatment note indicated that the Veteran had some recent respiratory issues with increased anxiety. He was slowly improving but still had some occasional panic attacks. He was appropriately dressed and groomed with good eye contact. He was engaging and polite and his speech was fluent. His mood and affect were mildly anxious and his thought process was linear and logical. After reviewing evidence of record as a whole, the Board finds that the assignment of an initial disability rating greater than 50 percent for the Veteran's service-connected anxiety disorder for the period prior to July 8, 2014 is not warranted. In this regard, the evidentiary record was negative for speech that was intermittently illogical, obscure or irrelevant; spacial disorientation; or near-continuous panic or depression affecting his ability to function independently. Moreover, the rating criteria for a 70 percent evaluation require that a claimant be unable to establish or maintain social relationships. While the Veteran reported having issues related to his interpersonal relationships, his social impairment more closely contemplates the currently assigned 50 percent evaluation for this time period. Notably, the Veteran had difficulty in establishing and maintaining effective work and social relationships as he reported periods of isolation and avoidance of social situations to help manage anxiety and reduce instances of anger outburst which tended to happen in social settings. However, the October 2012 VA examiner noted that the Veteran had been able to maintain good relationships with some of his family and one close friend and had also participated in and enjoyed several social outings sponsored by his apartment complex. Specifically, the Veteran himself noted some close relationships with extended family members living locally including a niece and a cousin who would visit regularly and help with household chores including cleaning and shopping. He also noted having a best friend in Cleveland who he spoke with once a week on the telephone while also being "friendly" with people in his building and at church. The Board notes that the record does reflect multiple reports of paranoia that were recorded by treatment providers. As noted above, a February 1984 private treatment report noted that the Veteran had been experiencing nervousness and paranoia. On his initial May 2002 claim for benefits, the Veteran also reported experiencing paranoia and would hear people talking when no one was there. In 2006 and 2007 the Veteran reported that he worried about people being in the bushes, had a fear of people looking through his window at him and heard people whispering at him. Further, at his June 2010 hearing, the Veteran testified that he had paranoid thoughts, such as thinking people are watching him or snipers are after him, that caused him to stay inside. Additionally, on VA examination December 2010, the examiner noted that the Veteran had some evidence of thought disorder when discussing a history of thinking that aliens were going to come and take him. However, the most recent VA examination in October 2012 noted that thought processes were relatively well organized and goal-directed with no evidence of a thought disorder reported or detected. Additionally, while the October 2012 examiner indicated that the Veteran was quite tangential at times and needed redirection to stay on topic, he was also alert and oriented to person, place, time and purpose. The examiner also specifically noted that the Veteran's current functional impairment was judged to be moderate even though he clearly suffered from significant distress due to his symptoms and clearly devoted considerable energy into coping with them every day. Furthermore, even acknowledging the presence of paranoia and delusions at times during the pendency of this appeal, the overall manifestations and level of disability demonstrated by the record are more consistent with no more than an initial 50 percent disability rating. Despite the presence of paranoia and delusions at times, as noted above, the evidence again does not show that the Veteran has speech that was intermittently illogical, obscure or irrelevant; spacial disorientation; or near-continuous panic or depression affecting his ability to function independently. The Board also notes that the Veteran has indicated that he has episodes of suicidal ideation in the past. However, the Veteran denied suicidal ideation at the December 2010, April 2012 and October 2012 VA examinations and in other VA medical records. Therefore, while the Veteran may have contemplated suicide at some point throughout the history of his anxiety disorder, the evidence of record suggests that suicidal ideation has been an intermittent manifestation of his disability, rather than a consistent one. Furthermore, even acknowledging the presence of suicidal ideation at times during the pendency of this appeal, the overall manifestations and level of disability demonstrated by the record are more consistent with no more than a 50 percent disability rating. The Veteran's GAF scores ranging from 50 to 60 also generally show moderate to serious impairment and support a 50 percent rating for anxiety disorder. The Veteran indicated that he was both depressed and tense and endorsed varying energy levels, occasional feelings of worthlessness, sleep problems and memory concerns. He also experienced panic attacks on a weekly basis and anger outbursts also continued to be another one of his primary concerns. The Veteran has indicated that he has had obsessional rituals which interfere with routine activities and impaired impulse control. However, the Veteran reported at the June 2010 hearing that that he has not become violent with anyone in the past few years. Moreover, multiple VA examiners specifically described the Veteran's current functional impairment as mild to moderate. Moreover, while the Board accepts that the Veteran's anxiety has effects on his functioning, the lay and medical evidence of record does not demonstrate significant deficiencies in most areas. Indeed, at no point in this time period did the VA examiners or any other examiner or treating physician find that the Veteran's anxiety caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as is required for the assignment of a 70 percent rating; or cause total occupational and social impairment, as is required for the assignment of a 100 percent rating. In fact, the Board notes that the April 2012 and October 2012 VA examiners indicated that the Veteran's psychiatric symptoms were best summarized as occupational and social impairment with reduced reliability and productivity. This description corresponds squarely with the schedular requirements for the assignment of a 50 percent disability rating. Thus, while the record demonstrates that the Veteran does have some social and occupational impairment which impact his quality of life, the greater weight of evidence demonstrates that it is to a degree less that is contemplated by the 50 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating for the period prior to July 8, 2014. While the Veteran has some of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed his current 50 percent rating. Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 50 percent rating. Accordingly, this evidence demonstrates that prior to the Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met. There is no showing that the Veteran had gross impairment of communication, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, intermittent inability to perform activities of daily living as a result of his psychiatric symptoms, or disorientation to time or place. As discussed, the evidence also weighs strongly against finding that his disability is manifested by total social impairment. The Veteran has been able to maintain good relationships with some of his family and one close friend and had also participated in and enjoyed social outings sponsored by his apartment complex. The Veteran has also reported some close relationships with extended family members living locally, that he has a best friend in Cleveland who he spoke with once a week, and that he is "friendly" with people in his building and at church. Thus, the Board finds that the preponderance of the evidence is against the claim as the Veteran's symptoms more closely approximated the criteria for an initial 50 percent disability rating, and neither a 70 or 100 percent rating. For all the foregoing reasons, the Veteran's claim for entitlement to an initial rating in excess of 50 percent for service-connected anxiety disorder for the period prior to July 8, 2014 must be denied. II. Earlier Effective Date Laws and Regulations A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2017). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Board notes that prior to July 8, 2014, the Veteran was service connected for anxiety disorder at a 50 percent disability evaluation. Prior to July 8, 2014, his combined rating of 50 percent does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2017). See also Fanning v. Brown, 4 Vet. App. 225 (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 and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Factual Background and Analysis Initially, the Board notes again that the Veteran's combined disability rating of 50 percent for the period prior to July 8, 2014 does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. On review of the record, the Board finds the Veteran is not unemployable by reason of his service-connected disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted for the period prior to July 8, 2014. The Veteran has maintained that he was unemployable due to the effects of his service-connected psychiatric disability. The Veteran initially submitted a claim for entitlement to a TDIU that was received by VA in May 2008 as he claimed that his anxiety disorder prevented him from securing or following any substantial occupation. Accordingly, the Board must now look to the evidence to determine when it was "factually ascertainable" that the criteria for TDIU were met. Here, the central inquiry is whether the Veteran's service-connected disability alone, is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment for the period before July 8, 2014. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record demonstrates that the Veteran tried to work as a security guard in the summer of 1983 but lost the job as he was becoming too suspicious of other people and quit. Later, in 1991 he worked for 3 weeks as a security guard. The November 2007 VA examiner noted that while the Veteran had not worked since his VA benefits were granted in late 1990, it was suggested that he may have stopped working because his benefits were granted. The examiner also opined that the Veteran's PTSD symptoms would only pose mild to moderate difficulties for him in a typical work setting. On VA examination in December 2010, the Veteran reported that he last worked in 1990 as he said that his mind did not focus which was why he had not worked. The examiner noted that the fact that the Veteran had not worked since 1990 would make it difficult for him to return to the work force presently. He was likely, however, to be able to perform structured work, as he was reportedly completing volunteer work at the senior citizen building at which he resided. It is likely that he would have difficulty working with others, but if he was provided an isolated environment, which would minimize his tendency to get angry with others, the Veteran may have a reasonable chance of maintaining employment. Overall, the Veteran's chances of returning to independent employment were poor, but it appeared possible that he could work if he is given the right environment and structured setting. On VA examination in October 2012, the examiner noted that the Veteran reported that he last worked in 1991 as a security guard for a job that lasted only 3 weeks. Prior employment included a number of general labor positions including a cook and an office/building cleaner. The examiner concluded that even though the chances of the Veteran returning to substantially gainful employment may be poor, it appeared that he could work if given the right occupational environment, structured job duties and supervision. As noted above, the evidence clearly reveals that the Veteran has not worked since 1991 and he has a significant psychiatric disability which affects his social and occupational abilities. While the Board is sympathetic for the restrictions that encompassed this service-connected disability, the greater weight of evidence supports a finding that the Veteran's service-connected disability did not preclude all forms of employment for the period prior to July 8, 2014. Here, multiple VA examiners have indicated that while the Veteran's employability was impacted by his psychiatric disability, the Veteran could still continue to work. The Board again notes that the in January 1991, the Veteran was found totally disabled, for SSA purposes, as a result of his physical and psychiatric disabilities. Although VA is required to consider the SSA's findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. Thus, SSA's determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence, and the opinions of the November 2007, December 2010 and October 2012 VA examiners that the Veteran could still work despite his service-connected psychiatric disability. Additionally, the Board notes that while the SSA determined that the Veteran was totally disabled for SSA purposes, this determination resulted from a combination of his service-connected psychiatric disability and non-service connected physical disabilities. However, the law is clear, and it states that only service-connected disabilities may be considered in a claim of entitlement to a TDIU. The statements of the Veteran as to his employability for the period prior to July 8, 2014 as a result of his service connected psychiatric disabilities have also been considered and they are found to be competent, credible and probative as to the symptoms experienced and observed. However, they are outweighed by the evidence of record. Here, the central inquiry is whether the Veteran's service-connected disability, alone, is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected psychiatric disability precluded him from obtaining or engaging in substantially gainful employment for the period before July 8, 2014. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU for the period before July 8, 2014, and that referral for to the Directory of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis is not required. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial evaluation in excess of 50 percent for service-connected anxiety disorder for the period prior to July 8, 2014 is denied. Entitlement to an effective date prior to July 8, 2014, for the grant of a TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs