Citation Nr: 1820594 Decision Date: 04/07/18 Archive Date: 04/16/18 DOCKET NO. 14-04 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected right hip disability. 2. Entitlement to an initial rating for an anxiety disorder, not otherwise specified (NOS), in excess of 50 percent prior to January 14, 2017, and in excess of 70 percent from January 14, 2017. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 19, 2016. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD S. Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2013, the Veteran presented testimony before a Decision Review Officer (DRO) at the RO. A transcript of the proceeding is of record. In September 2015, the Board remanded the claim for further evidentiary development. An August 2017 rating decision increased the rating for anxiety disorder to 70 percent, effective January 14, 2017. The Veteran has not expressed satisfaction with the increased rating, and the rating is less than the maximum under the applicable criteria; hence, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue has been characterized accordingly. The Veteran filed an application for TDIU in December 2016. The RO granted TDIU in March 2017, effective December 19, 2016, the date of the TDIU application. In a March 2018 VA Form 21-0958, Notice of Disagreement, the Veteran expressed disagreement with the effective date assigned to the award of TDIU. The evidence of record in conjunction with his claim for an increased rating for anxiety disorder indicates that he was unemployed prior to December 19, 2016 and he has sought the highest rating for his service-connected anxiety disorder. Therefore, the Board finds that the issue of entitlement to TDIU prior to December 19, 2016 is part of the appeal for an increased rating for anxiety disorder and is inextricably intertwined with the increase rating claim before the Board. Therefore, the Board is taking jurisdiction of the claim in this decision and has characterized the issues accordingly. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's back disability is etiologically related to his active military service. 2. Prior to January 14, 2017, service-connected anxiety disorder, NOS, has been manifested by near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships; the frequency, severity, and duration of his symptoms most nearly approximated occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Throughout the appeal period the Veteran's service connected anxiety disorder, NOS, has not resulted in total occupational and social impairment. 4. For the period before December 19, 2016, the Veteran's service-connected disabilities precluded him from securing and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for a disability rating of 70 percent, but not greater, are met for the entire appeal period for anxiety disorder, NOS. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 3. Prior to December 19, 2016, the schedular criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Duties to Notify and Assist Neither the Veteran nor his attorney 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 a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria and Analysis 1. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Regarding direct service connection, the Veteran was diagnosed with degenerative arthritis of the spine in August 2011and lumbar disc disease in January 2014; thus, the Veteran has a current disability. See August 2011 VA treatment note and December 2011 and January 2014 VA Examinations. The Veteran reported he injured his back in service during a dive. He specified he was pulled from the water following a dive, struck an underwater obstacle, and hurt his back. See December 2011 VA Examination. The Veteran is competent to provide evidence regarding the facts or circumstances of what he experienced in service. The Veteran's DD-214 shows his military occupational specialty to be a diver. The Board finds the Veteran's statements regarding an injury to his back during service to be credible, as they are consistent with the circumstances of his service as reflected by his service records. 38 C.F.R. § 3.159(a)(2). Therefore, the second element of the claim of service connection is met. What remains to be established is whether there is a relationship between the Veteran's service and his disability. A December 2011 VA examiner opined that it was less likely than not that the Veteran's current back disability was caused by the Veteran's service. As rationale, the examiner explained that there was no medical evidence in the Veteran's service treatment records of any back problem, there was medical evidence of a low back condition more than 30 years later due to a martial arts injury, and there was medical evidence the Veteran fell off of a roof in 2010. A January 2014 VA examiner opined it was less likely than not that the Veteran's back disability was caused by the Veteran's service. In so doing, the examiner referenced a VA Training Letter that outlines the disabilities that may arise from diving. This letter documents that decompression sickness, or Caisson disease, can affect the musculoskeletal system. See July 2007 VA Training Letter. The Board remanded this case, in part, for an addendum opinion and asked the examiner to discuss the July 2007 Training Letter. See September 2015 Board Decision. In an April 2017 addendum, the January 2014 examiner again opined that it was less likely than not that the Veteran's back disability was caused by the Veteran's service. The examiner noted that the July 2007 VA training letter documents that the symptoms of decompression sickness, or Caisson disease, may appear while a diver is ascending, or almost always immediately after the diver surfaces (with 95% occurring within three hours), and nearly all appear within 24 hours after the dive ends. The examiner explained the Veteran's service treatment records were absent for any untoward event due to diving, to include a diving injury or decompression sickness. The examiner noted that there was no diagnosis of compression arthralgia due to decompression sickness in service or after service. The examiner noted that based on his service records, the possible diving period for the Veteran was less than one year and that he did not have an extensive diving record. The examiner added that the Veteran first presented to the VA in 2002, more than 30 years after his discharge from service, and reported lower back pain for over 10 years. The examiner elaborated that medical knowledge and the July 2007 VA training letter do not support that dives in service in the 1970's would result in a back condition decades after the service. The examiner specified that degenerative disc disease of the lumbar spine is caused by age related changes, along with flexion, extension, and torsion injuries of the spine as seen in marital arts, a fall from a roof, or from heavy lifting injuries during construction work. The Board concludes that a preponderance of the evidence is against a finding that the Veteran's in service injury caused the Veteran's back disability. In reaching this conclusion, the Board assigns substantial weight of probative value to the April 2017 addendum. The Board affords the April 2017 examiner's conclusion that it was less likely than not that the Veteran's back disability was caused by the Veteran's service significant weight of probative value because the examiner's opinion is based on a thorough review of the medical evidence, is well-reasoned, and supported by medical evidence. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The December 2011 and January 2014 opinions are also supportive of the April 2017 opinion. Other evidence supports the examiner attributing the Veteran's back disability to age related changes, along with flexion, extension, and torsion injuries of the spine as seen in marital arts, from a fall off a roof, or from heavy lifting injuries during construction work. For example, an April 2011 VA treatment record shows that the Veteran complained of a chronic back injury he sustained 30 years ago from kickboxing; he also indicated at that time that he had fallen from a roof the prior year. Additionally, the Veteran has been in construction work since at least 1985. See January 2017 Statement in Support. The only evidence in support of a relationship between the Veteran's service, including in service dives, and his current back disability are lay statements. The Board finds that the Veteran's and other lay evidence causally relating his low back disability to the in-service injury is not entitled to any probative weight. See e.g. April 2012 Notice of Disagreement, September 2012 Buddy Statement, and December 2013 Decision Review Officer Hearing Transcript. The question of whether hitting an underwater obstacle in the early 1970's resulted in a back disability is a complex medical question not capable of lay observation, and is not otherwise the type of medical question for which lay evidence is competent evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training."). The Board has also considered whether the Veteran is entitled to service connection under presumptive service connection or continuity of symptomatology. The Board recognizes that arthritis is listed as a chronic disease in § 3.309 and is therefore subject to presumptive service connection. However, there is no indication that the Veteran's arthritis manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran was discharged from active duty in October 1971, and the earliest indication of arthritis occurred approximately 31 years after, during VA treatment in October 2002. Consequently, the Veteran's arthritis did not manifest to a compensable degree within one year of discharge from service. Likewise, the Board has considered and rejects continuity of symptomatology. As explained above, approximately 31 years lapsed since the Veteran's honorable discharge from active duty to the first indication of a low back disability. The Board acknowledges that the Veteran indicated that he suffered from back pain for many years. See September 2011 Statement in Support. However, conditions indicative of a chronic back disability were not noted in service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). The evidence does not sufficiently identify a disease entity or establish chronicity in service; thus, it is not necessary to further address the evidence regarding continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. The Board has also considered whether the Veteran is entitled to service connection under secondary service connection. The Veteran has a current disability for which service connection is sought and he is service connected for a right hip disability. See March 2016 Rating Decision. What remains to be established is whether there is a relationship between the Veteran's service-connected right hip disability and his back disability. An April 2017 examiner opined that it was less likely as not that the Veteran's lumbar spine disability was caused or aggravated by his service connected hip disability. As rationale, the examiner noted the Veteran's right hip arthritis was shown in April 2010 and he was diagnosed with a degenerative back condition in May 2010. The examiner noted there was an absence of atrophy, wasting, or weakness of the right hip prior to the diagnosis of the degenerative back condition and that the Veteran ambulated with a normal gait in and prior to 2010. Additionally, the examiner relied on objective medical evidence in reaching his conclusion. Specifically, the examiner stated the Veteran's medical imaging evidence showed the Veteran had natural progression of degenerative changes in the lumbar spine in 2010. The examiner pointed to a June 2010 lumbar MRI, which showed degenerative discopathy with disc bulges throughout the lumbar spine, mild central canal stenosis at the L1-L2 and L2-L3 levels, severe central canal stenosis at the L3-L4 and L4-L5 levels, and degenerative facet arthropathy with bilateral nerve root impingement extending from the L3-L4 to L5-S1 levels. The examiner noted the Veteran's January 2012 lumbar MRI showed no dramatic changes when compared to the June 2010 MRI. The examiner also explained the right hip prosthesis was in a good position with no evidence of loosening and no evidence of complication. The Board concludes that a preponderance of the evidence is against a finding that the Veteran's service-connected right hip disability caused or aggravated his back disability. In so doing, the Board assigns substantial weight of probative value to the April 2017 addendum. The Board affords the April 2017 examiner's conclusion significant weight of probative value because the examiner's opinion is based on a thorough review of the medical evidence, is well-reasoned, and supported by medical evidence. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In summary, the Board finds that a preponderance of the evidence is against the claim of service connection for a back disability. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Increased Rating The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods, based on the facts. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Anxiety disorder is rated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted 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. 38 C.F.R. § 4.130, DC 9411. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because "[a]ll non-zero disability levels [in § 4.130] are also associated with objectively-observable symptomatology," and the plain language of this regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Therefore, although the veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70 percent disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV) at 32. A score of 41 to 50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is appropriate where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Although current mental health evaluations no longer use this assessment of functioning under the new DSM-5 criteria, the Veteran's case was originally certified to the Board prior to VA's amendment to the regulations adopting the use of DSM-5, and accordingly, the Veteran's claim is evaluated under the DSM-IV criteria, which does consider GAF scores. See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45,099 (effective Aug. 4, 2014) and March 2014 Form 8. The Board acknowledges that recently, in Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202 (Vet. App. Feb. 23, 2018), the United States Court of Appeals for Veterans Claims (Court) concluded that when assigning a psychiatric rating in cases where the DSM-5 applies, the Board should not use evidence of GAF scores, as the DSM-5 rejected use of those scores. However, as explained, the Veteran's claim was pending before August 4, 2014 and DSM-IV criteria are applicable. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-96 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). During a December 2011 VA psychiatric examination, the Veteran reported symptoms of claustrophobia, poor sleep, anger, irritability, anxiety, and depression. The Veteran denied a history of suicide attempts. Regarding family and social history, the Veteran stated he divorced after 24 years of marriage and denied being in a relationship for the past three years. The Veteran stated he did not have a social life. The examiner diagnosed the Veteran with an anxiety disorder, NOS. The examiner noted the following symptoms were associated with the Veteran's diagnosis: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), disturbances of motivation and mood, and difficulty adapting to stressful circumstances (including work or a work like setting). The examiner assigned a GAF score of 65. The examiner opined that the Veteran's disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a September 2012 letter, the Veteran delineated his symptoms to include: depression, motivation, frequent panic attacks (occurring several times a week), memory loss, concentration, and difficulty establishing and maintaining relationships. The Veteran noted stress exacerbates these symptoms. The Veteran explained being confined in small spaces triggers panic attacks. The Veteran elaborated that his claustrophobia prevents him from performing certain parts of his job because as a construction worker he is required to go into small spaces such as an attic. The Veteran reported depression as an ongoing problem and crying spells every morning and every night. The Veteran indicated a lack of concentration, which is amplified during periods of stress. The Veteran noted suffering from nightmares weekly. According to the Veteran, maintaining relationships is problematic because of his difficulty in opening up to people. In a September 2012 statement, the Veteran's ex-wife described the Veteran's symptoms. She noted the Veteran suffered from nightmares, claustrophobia, panic attacks induced by claustrophobia, an inability to socialize, difficulty in concentration, and mood swings. She reported that the Veteran would have bad dreams and would often be standing at the side of their bed talking or acting out a service related situation. In a September 2012 statement, the Veteran's former business partner described their professional relationship. He noted that he and the Veteran were in business for over 30 years and in the last 15 years, he witnessed various anxiety problems take a toll on the Veteran, his judgment, and their business. The business partner elaborated the Veteran would come into work crying, unable to work, and extremely depressed. He noted these issues caused the Veteran difficulty in handling business contracts. He was forced to dissolve their business relationship due to the Veteran's mental status. He described the Veteran as staying "in a safe zone." A July 2013 VA treatment note indicates the Veteran lived alone, suffered from nightly nightmares, poor sleep, increased anxiety, and panic attacks. The Veteran described feelings of sadness, helplessness, and irritability. The Veteran noted he has several crying spells during a week, irregular sleep, and lack of energy and motivation. The Veteran reported avoiding social interactions, and experienced increased anxiety while in public places. The mental status examination showed the Veteran to be alert and oriented. His speech was described as normal. His mood was noted to be moderately depressed and affect was congruent with mood. Thought processes were linear and no hallucinations were noted. His insight was described as appropriate and judgment as adequate. He was diagnosed with adjustment disorder, with anxiety and depressed mood. A November 2013 VA treatment note documents that the Veteran was referred for cognitive testing. The Veteran reported the following cognitive symptoms: difficulty with attention and concentration, short-term memory loss, difficulty with decision-making, problems planning and organizing, slower speed of thinking, getting lost or disoriented even in familiar places, and trouble multi-tasking. Emotionally the Veteran reported feelings of sadness and depression, crying spells or weepiness, decreased emotion, low motivation, decreased interest in enjoyable activities, difficulties with sleep, and feelings of anxiety or fear. The Veteran indicated significant depression. He described crying spells every night. The Veteran noted he has a son and a daughter but denied a "warm and fuzzy" relationship with either. The mental health examination showed the Veteran to be alert and attentive; appearance, behavior, and speech were normal; mood was anxious; and affect was congruent with mood. No hallucination or illusions were noted and thought processes were normal and coherent. The Veteran was diagnosed with unspecified neurocognitive disorder mild to moderate, unspecified anxiety disorder, and unspecified depressive disorder. The Veteran was noted to have mild depression with long standing dysthymia and severe anxiety. The Veteran's reasoning abilities were described as mildly to moderately impaired and his immediate memory as low average, but his delayed memory as moderately impaired. Attention and concentration was noted to be mildly to moderately impaired. The examiner could not offer an etiology opinion for the deficits. The Veteran testified at a DRO hearing in December 2013. The Veteran stated he did not want to leave the house and described memory issues that affected his life. He elaborated that he would get lost in buildings. The Veteran stated confinement in close spaces resulted in feelings of claustrophobia, which caused a panic attack. He described symptoms of anxiety attacks, lack of sleep, nightmares, and bad memories. The Veteran reported he was married for 25 years, but 10 years into the marriage, he started having mood swings, crying attacks, panic attacks, and nightmares. The Veteran noted that two subsequent relationships after his marriage lasted four years and ended due to the same reasons as his marriage. The Veteran stated his daughter resided with him because she did not have a place to stay. He denied having a relationship with his son and reported a lack of friends. The Veteran indicated he previously had hobbies, such as shooting rifles, but could no longer motivate himself. During a January 2014 VA examination, the Veteran stated he divorced after 24 years of marriage and he noted a couple of long term relationships that lasted three to four years. The Veteran stated his daughter resided with him and added that he worked part time in construction. The Veteran's appearance and hygiene were described as appropriate. The Veteran's orientation, speech, attention, memory and concentration were noted to be within normal limits. Thought processes were described as normal and judgment was not impaired. The examiner noted the Veteran's symptoms were depressed mood, anxiety, and disturbances of motivation and mood. There was no evidence of psychosis and suicidal and homicidal ideations were absent. The examiner diagnosed the Veteran with unspecified anxiety disorder. The examiner noted the following symptoms were associated with the Veteran's diagnosis: depressed mood, anxiety, and disturbances of motivation and mood. The examiner opined that the Veteran's disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner reported the Veteran underwent neuropsychological testing in November 2013, which showed mild to moderate cognitive deficits of unknown etiology. The examiner noted the neuropsychological testing results could be significantly impacted by psychological factors such as anxiety or medication use. The examiner explained that the Veteran's November 2013 neuropsychological testing results were inconsistent with the Veteran's clinical presentation during the examination. A May 2014 VA treatment note documents a diagnosis of anxiety disorder, NOS, mood disorder, and subclinical PTSD features. The Veteran reported working construction part-time, but noted he lived alone and suffered from depression and short-term memory problems. He stated his sleep was poor and accompanied by anxiety. On the mental status examination, the Veteran was noted to be oriented to time, place, and person. Sleep was described as poor with nightmares of trauma. Depression, irritability and anger issues were noted. Thought processes were reported as coherent, organized, and future directed. His memory was noted to be intact. The Veteran denied suicidal or homicidal ideations. A June 2014 VA treatment note shows the Veteran reported symptoms of nightmares, lack of sleep, claustrophobia, lack of a short-term memory. He noted that panic attacks cost him his business. He reported no desire to interact with people. However, he denied suicidal and homicidal ideations. His appearance was noted to be appropriate and orientation as alert. The Veteran's mood was described as anxious and affect was congruent with mood. Perceptions were normal, no thought disorder or delusions were noted and thought processes were described as normal. Insight and judgment was adequate. The Veteran was diagnosed with unspecified anxiety disorder. A July 2014 VA treatment note states the Veteran described feelings of anxiety and claustrophobia. The Veteran reported difficulty holding a job, but acknowledged he completed small jobs. He noted symptoms of memory loss, anxiety, isolation, sadness, nightmares, and low energy. The Veteran denied hallucinations, but indicated the presence of weekly panic attacks. The Veteran reported difficulty with being able to focus and concentrate. The provider documented that the Veteran was oriented, dressed appropriately, and behavior and speech were normal. Mood was noted to be anxious but stable and affect congruent with mood. Insight and judgment were described as fair. However, the Veteran was noted to be forgetful and easily confused. A January 2015 VA treatment note documents the Veteran suffered from anxiety and memory loss. The Veteran described feelings of loneliness. The Veteran reported living with friends and performing chores in exchange for work. He was described as alert, oriented, cooperative, and appropriately dressed. His speech was spontaneous without evidence of a thought disorder. Mood was depressed but stable. Affect was noted to be appropriate to content. No perceptual abnormalities were noted. Speech and voice were within normal range. No auditory or visual hallucinations were indicated. Judgment appeared intact. The Veteran denied suicidal and homicidal ideations, intent, or plan. He was diagnosed with anxiety disorder with panic, depressive disorder, and PTSD. A June 2015 VA treatment note documents the Veteran was diagnosed with unspecified anxiety disorder, unspecified mild neurocognitive disorder without behavioral problem, and depressive disorder. The Veteran reported symptoms of irritability and lack of sleep. The mental status examination described the Veteran as being casually dressed and groomed and his mood and affect were noted as mildly irritable. There was no indication of mania, hallucinations, or delusions. The Veteran was described as alert and oriented, his attention, insight, and concentration described as fair, and his judgment as intact. No symptoms of suicidal or homicidal ideations were noted. An August 2015 VA treatment note documents that the Veteran denied suicidal or homicidal ideations, but he did note memory problems. A February 2016 VA treatment note documents the Veteran reported symptoms of anxiety, depression, memory loss, and claustrophobia. He was described as alert, oriented, cooperative, and appropriately dressed. Speech was noted to be without evidence of a thought disorder. Mood was stable and affect was appropriate to content. There was no auditory or visual hallucinations indicated and judgment appeared intact. The Veteran denied suicidal and homicidal ideation, intent, or plan. During a January 2017 VA psychiatric examination, the Veteran reported symptoms of anxiety, uncontrollable crying spells three to four times a week, poor memory, nightmares, insomnia, and claustrophobia. The Veteran noted he avoided crowds and did not like to socialize. The Veteran indicated these symptoms affected his daily functioning. The Veteran noted his behavior cost him his job and business. The Veteran denied having a relationship with his family and reported a lack of friends. The Veteran stated he last worked approximately one and half years ago. The examiner noted the Veteran's symptoms were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long term memory (retention of only highly learned material), flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and inability to establish and maintain relationships. The examiner diagnosed the Veteran with unspecified anxiety disorder and unspecified neurocognitive disorder without behavior problems. The examiner opined that the Veteran's disorders caused occupational and social impairment with reduced reliability and productivity. The examiner indicated it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder. During a May 2017 VA psychiatric examination, the Veteran reported symptoms of anxiety, panic attacks (one to four times daily most days of the week), worrying, claustrophobia, avoidance of situations which precipitate anxiety, feeling overwhelmed with anxiety, helplessness, hopelessness, memory issues, lack of concentration, poor sleep, low motivation, and nightmares. The Veteran indicated these symptoms affected his occupational and social functioning. Specifically, he reported he could not tolerate being in a crawlspace in the workplace, being in elevators, and traveling on an airplane or the backseat of a vehicle. Regarding family and social history, the Veteran stated he was single and resided with a friend because he could not afford to live alone. The Veteran reported he did not have a close connection with his son or daughter. The Veteran noted he performed odd construction jobs but they were limited to jobs that allowed him to work at his own pace. On the mental status examination, the Veteran's appearance and hygiene were described as appropriate. The Veteran was described as alert and oriented, but affect and mood were noted as anxious. Thought processes were noted to be circumstantial. Suicidal and homicidal ideations were absent. The examiner noted the Veteran's symptoms were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. The examiner diagnosed the Veteran with anxiety disorder, NOS, unspecified neurocognitive impairment, mild, and unspecified depressive disorder. The examiner noted it was not possible to differentiate which symptoms were attributable to each diagnosis because mental disorders are concurrent, continuous, and biologically and behaviorally interactive. The examiner elaborated that the Veteran's cognitive testing indicated that he meets the diagnostic criteria for unspecified neurocognitive disorder and that his service-connected anxiety disorder may worsen his cognitive impairment and vice versa. Thus, it was not possible to clearly distinguish the effects of these two disorders. The examiner also noted it was not possible to indicate at what specific point in time the anxiety changed in severity or disability because psychiatric disorders are typically chronic conditions and may have times of exacerbation, and times of improvement. The examiner opined the Veteran's disorders caused occupational and social impairment with reduced reliability and productivity. The examiner indicated it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder because mental disorders are concurrent, continuous, and biologically and behaviorally interactive. In a separate opinion, the examiner noted that the Veteran had reported that his condition had continued to deteriorate since August 2011 and that this supported a worsening of his condition since that time. She noted that after August 2011, he continued to report anxiety, depression, and cognitive complaints, as well as occupational and social difficulties. She explained that the Veteran's condition was chronic with periods of exacerbation and improvement. The Veteran reported that at that time, since he was no longer working, he sometimes experienced days with less anxiety. After evaluating the evidence of record, the Board finds that symptoms of the Veteran's anxiety disorder, NOS, prior to January 14, 2017, more nearly approximate the criteria for a 70 percent rating, as they reflect there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In so doing, the Board places great probative weight on the May 2017 examiner's conclusion that it was not possible to differentiate which of the Veteran's symptoms were attributable to his service-connected anxiety disorder, NOS, and which to his neurocognitive impairment and unspecified depressive disorders. Thus, the Board finds that the Veteran's symptoms of a neurocognitive disorder and unspecified depressive disorders are inseparable from the Veteran's service-connected anxiety disorder, NOS. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that if it is not medically possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the veteran's service-connected condition). Specifically, on the December 2011 VA examination, the examiner noted the following symptoms were associated with the Veteran's diagnosis: depressed mood, chronic sleep impairment, memory loss (such as forgetting names, directions, or recent events), and difficulty adapting to stressful circumstances (including work or a work like setting). During a January 2017 VA psychiatric examination, the Veteran reported symptoms of poor memory, nightmares, insomnia, and claustrophobia. The Veteran noted he avoided crowds and did not like to socialize. The Veteran noted his behavior cost him his job and business. The Veteran denied having a relationship with his family and reported a lack of friends. The May 2017 examiner offered an opinion and indicated the Veteran's symptoms had been worsening since 2011 and the examiner noted the Veteran underwent periods of exacerbation and improvement. The Board resolves any reasonable doubt in favor of the Veteran and finds that he is entitled to a higher 70 percent rating prior to January 14, 2017. Continuing the analysis, the Board finds that throughout the appeal period, the Veteran's anxiety disorder, NOS, resulted in a deficiency in the areas of family and social relations, work, thinking, and mood and that the frequency, severity, and duration of his overall symptoms most nearly approximated occupational and social impairment with deficiencies in most areas as contemplated by a 70 percent rating. Specifically, the Board finds that the Veteran's symptoms reflect a deficiency in the area of family and social relations throughout the appeal period as there is evidence that the Veteran has an inability to establish and maintain effective relationships. For example, the Veteran does not have a relationship with his son or daughter. Likewise, he got divorced due to symptoms such as panic attacks. Moreover, the Veteran noted two subsequent relationships after marriage that lasted four years and ended due to the same reasons as his marriage. His relationship with his former business partner concluded due to his panic attacks and crying spells. The Veteran has consistently denied having friends. This evidence indicates that the frequency, duration, and severity of the Veteran's symptoms reflect a deficiency in the area of family and social relations. The Board finds that the Veteran's symptoms reflect a deficiency in the area of work throughout the appeal period. For example, in a September 2012 statement, the Veteran's former business partner noted the Veteran would come to work crying and extremely depressed. Ultimately, the business partner was forced to dissolve their business relationship due to the Veteran's mental status. Likewise, the Veteran's September 2012 letter outlines how confinement in small spaces triggered panic attacks and his claustrophobia was an obstacle to performing certain aspects of his job. This evidence indicates that the frequency, duration, and severity of the Veteran's symptoms reflect a deficiency in the area of work. The Board finds that the Veteran's symptoms reflect a deficiency in the area of thinking throughout the appeal period. For example, the Veteran's business partner in his September 2012 statement indicated the Veteran at one point contemplated suicide. In a September 2012 statement, the Veteran's ex-wife reported that the Veteran would have bad dreams and would often be standing at the side of their bed talking or acting out a service related situation. Likewise, the evidence shows the Veteran had attention, cognitive, and memory problems throughout the appeal period. A November 2013 VA treatment note, documents that the Veteran reported the following cognitive symptoms: difficulty with attention and concentration, short-term memory loss, difficulty with decision-making, problems planning and organizing, slower speed of thinking, getting lost or disoriented even in familiar places, and trouble multi-tasking. This evidence indicates that the frequency, duration, and severity of the Veteran's symptoms reflect a deficiency in the area of thinking. The Board finds that the Veteran's symptoms reflect a deficiency in the area of mood throughout the appeal period. The evidence shows the Veteran has displayed near-continuous panic or depression affecting the ability to function and difficulty adapting to stressful circumstances. For example, during a December 2011 VA psychiatric examination, the examiner noted the Veteran had difficulty adapting to stressful circumstances, including work or a work like setting. Similarly, during a January 2017 VA psychiatric examination, the examiner noted the Veteran's symptoms included difficulty in adapting to stressful circumstances. Likewise, during a May 2017 VA psychiatric examination, the examiner noted the Veteran's symptoms included difficulty in adapting to stressful circumstances. Moreover, the evidence demonstrates that the Veteran suffered from near-continuous panic or depression affecting the ability to function throughout the appeal period. For example, in a September 2012 letter from the Veteran indicates his symptoms include depression and frequent panic attacks (occurring several times a week). In a September 2012 statement, the Veteran's ex-wife noted the Veteran's suffered from panic attacks and mood swings. Also, the Veteran's former business partner described the Veteran as staying "in a safe zone." Likewise, the May 2017 VA examiner also noted the Veteran suffered from near continuous panic or depression that affected his ability to function independently. This evidence indicates that the frequency, duration, and severity of the Veteran's symptoms reflect a deficiency in the area of mood. However, the record does not reflect a deficiency in the area of judgment throughout the appeal period. The Veteran has not made threats of violence and there is no evidence of a history of violence. Additionally, his judgment and insight has been described as intact. For example, a July 2013 VA treatment note describes the Veteran's insight as appropriate and judgment as adequate. Likewise, a June 2014 VA treatment note shows the Veteran insight and judgment as adequate. Therefore, the Board finds that any lapses in judgment the Veteran has had throughout the appeal period have been more reflective of the frequency, duration, and severity of symptoms that cause occupational and social impairment with reduced reliability and productivity, rather than a deficiency in the area of judgment. The Board finds that throughout the appeal period the Veteran's anxiety disorder, NOS, resulted in a deficiency in the areas of family and social relations, work, thinking, and mood and that the frequency, severity, and duration of his overall symptoms most nearly approximated occupational and social impairment with deficiencies in most areas as contemplated by a 70 percent rating. Thus, a finding that the Veteran has occupational and social impairment with deficiencies in most areas, contemplated by a 70 percent rating, is warranted throughout the appeal period. However, the record reflects symptoms of the Veteran's psychiatric disorder have not caused him to have total occupational and social impairment, as required for a 100 percent rating at any time during the appeal period. As discussed below, the Board is granting entitlement to TDIU for a period prior to December 19, 2016; thus, the evidence supports total occupational impairment. However, a preponderance of the evidence is against a finding that the Veteran also has total social impairment, which is required for a higher 100 percent rating. For example, on the May 2017 examination the Veteran indicated living with a friend. Additionally, mental status examinations on VA examinations throughout the appeal period did not show the symptoms contemplated by the 100 percent rating or any symptoms of like frequency, duration, or severity. The Veteran's appearance and hygiene were described as appropriate and suicidal and homicidal ideations were absent. There was no evidence of delusions or hallucinations or grossly inappropriate behavior. There was no evidence that he was a persistent danger to himself or others. His memory loss was described as mild. Therefore, a preponderance of the evidence is against a finding that he has total social impairment any time during the appeal period. The evidence as a whole more nearly approximates that the frequency, severity, and duration of his symptoms cause him to have occupational and social impairment with deficiencies in most areas, which is reflective of the criteria for the assigned 70 percent rating throughout the appeal period. The Board notes that the Veteran's GAF score assigned on December 2011 VA examination is not inconsistent with the rating currently assigned, and of itself does not provide a separate basis for increasing the rating. The Board has also considered the Veteran's statements regarding the severity of his psychiatric disorder. The Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected psychiatric disorder. The Board has considered whether any staged rating is appropriate and finds that evidence regarding the level of disability is consistent with the assigned rating. The Board finds that the Veteran's symptoms have been consistent with the 70 percent rating throughout the appeal period. The record does not indicate any significant increase or decrease in the Veteran's symptoms that is not already accounted for by the assigned rating. Accordingly, staged ratings are not warranted. See Fenderson, 12 Vet. App. at 126. In summary, the evidence more nearly approximates the criteria for a 70 percent rating prior to January 14, 2017, but a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 70 percent at any time during the appeal period. Therefore, a rating in excess of 70 percent is denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 3. TDIU The Veteran seeks entitlement to a TDIU before to December 19, 2016. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the 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. §§ 3.340, 3.341, and 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or from a single accident are considered to be one disability. Id. The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran has the following compensable service-connected disabilities: anxiety disorder, NOS, now rated at 70 percent and avascular necrosis of the right hip with degenerative arthritis, status post total hip arthroplasty, rated 30 percent. Thus, he meets the schedular criteria for entitlement to TDIU. The remaining (and dispositive) question is whether the service-connected disabilities render the Veteran incapable of participating in a regular substantially gainful occupation consistent with his education and work experience. Here, a balance of the evidence supports that the Veteran's service-connected disabilities substantially impact his ability to secure and engage in types of employment at any exertional level before December 19, 2016. The Veteran's December 2016 TDIU claim reflects that he completed high school. On the TDIU claim form, the Veteran reported working from 2004 to 2014 in construction, but noted he lost several months of work a year due to illness. The Veteran reported he last worked full time in July 2011 and became too disabled to work in January 2012. The Veteran's September 2012 letter outlines how his service-connected disabilities prevent substantially gainful employment. For example, the Veteran explained that being confined in small spaces triggers panic attacks and that his claustrophobia prevents him from performing certain parts of his job because as a construction worker he is required to go into small spaces, such as an attic. In a September 2012 statement, the Veteran's former business partner noted that the Veteran would come into work crying, unable to work, and extremely depressed. He noted these issues caused the Veteran difficulty in handling business contracts and that he was forced to dissolve their business relationship due to the Veteran's mental status. The Veteran testified at a DRO hearing in December 2013 and stated he did not want to leave the house. He also described memory issues that affected his life, such as getting lost in buildings. A June 2014 VA treatment note shows the Veteran reported that panic attacks cost him his business. Likewise, on a May 2017 VA psychiatric examination, the Veteran reported he could not tolerate being in a crawlspace in the workplace, being in elevators, and traveling on an airplane or the backseat of a vehicle. On January 2017 VA examination of the right hip, the examiner explained that the Veteran's limitation of flexion of the right hip caused functional impairment which impacted moderate to severe physical employment, but not mild physical activity or employment or sedentary employment. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record shows the Veteran would have difficulty with most occupations due to his service-connected disability symptoms. Therefore, the Board concludes the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities before December 19, 2016. ORDER Service connection for a low back disability, to include as secondary to service connected right hip disability, is denied. A disability rating in excess of 70 percent (but no higher) for anxiety disorder, NOS, for the entire appeal period is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a TDIU prior to December 19, 2016 is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs