Citation Nr: 0909116 Decision Date: 03/11/09 Archive Date: 03/17/09 DOCKET NO. 05-13 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected post-traumatic stress disorder (PTSD), from March 30, 1968 through April 17, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1966 to March 1968, to include combat duty in Vietnam. This matter originally comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which determined that the Veteran was entitled to an earlier effective date of March 1968, for the grant of service connection for his PTSD. The PTSD was rated 10 percent from March 1968 through April 17, 2002 and the rating of 70 percent thereafter was confirmed. The Veteran filed his original claim for service connection for multiple disorders, to include a nervous disorder, on April 3, 1968, within a few days of his separation from service. An October 2002 RO decision granted service connection and assigned a 70 percent rating for PTSD, effective from April 17, 2002 or the date of receipt of the original claim for service connection for PTSD. As noted above, an RO decision in February 2004 found that the Veteran was entitled to an earlier effective date for his service-connected PTSD. The RO assigned the effective date for service connection as March 30, 1968 or the day after the Veteran's separation from service based upon a finding that he filed his original claim for service connection for a nervous disorder within one year of his discharge from service. The RO assigned a 10 percent rating for the Veteran's PTSD from March 30, 1968 through September 10, 2001 and a 70 percent rating thereafter. The Veteran appealed for a rating in excess of 10 percent for PTSD prior to September 11, 2001. An April 2007 RO decision found that its February 2004 decision was clearly and unmistakably erroneous in granting an earlier effective date for service connection for PTSD on the basis that receipt of the original claim for service connection for PTSD was April 17, 2002. Thus, this latter date was assigned as the correct effective date. On appeal in January 2008, the Board found that the February 2004 RO decision granting an earlier effective date of March 30, 1968 for the grant of service connection for PTSD was not undebatably erroneous. Accordingly, the Board restored the effective date of March 30, 1968 for the grant of service connection for a nervous disorder, which was eventually diagnosed as PTSD. The Board remanded the issue of the appropriate rating for PTSD from March 30, 1968 through April 17, 2002 for further development, to include obtaining any VA medical records dated prior to April 17, 2002 that might be available. In October 2008, the RO provided a Supplemental Statement of the Case (SSOC). In the instant case, the Board finds that the Appeals Management Center (AMC) has complied with the January 2008 Remand Order, and that neither the Veteran, nor his representative, has contended otherwise. Therefore, the Board it may proceed with its review of this appeal. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Certification Worksheet prepared by the RO indicates that the Veteran did not request a hearing. The Board notes that the Veteran's March 2005 Form 9 also indicates he did not want a hearing. However, an October 2006 correspondence contains the following statement: "Please let me know if you can't come up with what I am requesting how to get my voice to Washington D.C." In an April 2007 correspondence, the Veteran stated that "I would very much enjoy talking this over with the Board of Appeals. Or Washington D.C. if necessary." A June 2007 correspondence contains the following statement: I wanted to come to Washington D.C. to appeal my case in person, however, my wife has terminal cancer and cannot be left alone. So I will have to trust your good judgment to come up with a fair decision. The Board finds that the Veteran previously indicated he wanted a Central Office hearing, but construes this most recent statement as a written withdrawal of that request. The Veteran has indicated confusion with the manner in which the RO calculated his combined disability rating in 1968. See July 2008 Letter; May 2008 Letter. The Veteran n is referred to 38 C.F.R. § 4.25, the table used to combine ratings. The Veteran has indicated during this appeal that his service-connected disabilities preclude his ability to maintain employment. However, as he has been in receipt of a 100 percent schedular rating since April 17, 2002, any claim for a total disability rating based upon individual unemployability (TDIU) is moot. FINDINGS OF FACT 1. From March 30, 1968 through September 10, 2001, the Veteran's service-connected PTSD was not productive of more than mild social and industrial impairment or, since November 7, 1996, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; the preponderance of the evidence indicates that the disability was not manifested by definite social and industrial impairment or, since November 7, 1996, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The relevant psychiatric evidence shows that from September 11, 2001 through April 17, 2002, the Veteran's PTSD was manifested by multiple symptoms, to include nightmares, intrusive thoughts, panic attacks, irritability and depressed mood, which is consistent with severe impairment of the veteran's ability to establish and maintain effective or favorable relationships with people and occupational and social impairment with deficiencies in most areas; it was not productive of total social impairment or total occupational inadaptability (industrial impairment). CONCLUSIONS OF LAW 1. The schedular criteria for an initial or staged rating in excess of 10 percent for PTSD from March 30, 1968 through September 10, 2001 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 4.1-4.16, 4.132, Diagnostic Code 9411 (1996); 4.130, Diagnostic Code 9411 (2008). 2. The schedular criteria for a staged rating of 70 percent for PTSD, but no more than 70 percent, from September 11, 2001 through April 17, 2002, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.132, Diagnostic Code 9411 (1996); 4.130, Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. a. Duty to Notify As to the claim addressed in this decision, entitlement to an initial rating in excess of 10 percent from March 30, 1968 to April 17, 2002 for PTSD, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the April 2008 letter sent to the Veteran by the AMC adequately apprised him of the information and evidence needed to substantiate the claim. The AMC thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (same). For "applications for benefits pending before VA on or filed after" May 30, 2008, as here, 38 C.F.R. § 3.159(b)(1) no longer requires that VA request that the claimant provide any evidence in his or her possession that pertains to the claim. See 73 Fed. Reg. 23353, 23354 (Apr. 30, 2008). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The April 2008 letter from the RO satisfies these mandates. This correspondence clearly disclosed VA's duty to obtain certain evidence for the Veteran, such as medical records and records held by any Federal agency, provided the Veteran gave consent and supplied enough information to enable their attainment. It made clear that although VA could assist the Veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. This letter additionally apprised the Veteran that VA would schedule a medical examination or obtain a medical opinion for him if the RO determined such to be necessary to make a decision on the claim. The Board thus finds that the Veteran was effectively informed to submit all relevant evidence in his possession, the avenues by which he might obtain relevant evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Dingess requirements, the Veteran was provided with notice of the type of evidence necessary to establish a rating and effective date for a rating in a March 2006 letter. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did not provide such notice to the Veteran prior to the RO decision that is the subject of this appeal. Notwithstanding this belated notice, the Board determines that the RO cured this defect by providing this complete VCAA notice followed by readjudication of the claim, as demonstrated by the October 2008 SSOC. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of an SOC to cure timing of notification defect). With respect to Dingess notice, where such a timing error occurred, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders, 487 F.3d at 886, 891 (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board determines, however, that no prejudice to the Veteran resulted. As the preponderance of the evidence is against a higher rating prior to September 11, 2001, such notice with respect to a rating or effective date for this time period is rendered moot. In addition, with respect to the manner in which VA calculates disability ratings, the Veteran has demonstrated actual knowledge of this information, as reflected in his March 2006 and June 2007 statements where he asked for at least a 30 percent rating. Having shown actual knowledge of said applicable rating criteria, any presumed prejudice as a result of the belated Dingess notice has been rebutted. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The Board also finds that all necessary assistance has been provided to the Veteran. The evidence includes VA medical and psychiatric records. There is no indication of any additional relevant evidence that has not been obtained. Although the Veteran's September 2003 letter indicates that he spoke with a psychiatrist while recovering from his war injuries at the Ft. Ord Hospital, he told a VA clinician in March 2002 that he had not received prior inpatient or outpatient psychiatric treatment. The service treatment records establish that the Veteran was hospitalized for a few months after being injured, but do not indicate that he received any mental health treatment. The Veteran also claims that he spoke with a psychiatrist at the VA in Palo Alto after discharge. However, in a letter from the AMC dated April 2008, the Veteran was advised to provide the name of any VA facility where he received treatment for a psychiatric disorder. He did not respond. Although a November 2004 correspondence indicates that the Veteran receives disability benefits from the Social Security Administration (SSA), those records are not of file. The duty to assist extends to obtaining SSA records where they are relevant to the issue under consideration. Murinscak v. Derwinski, 2 Vet. App. 363 (1992). Here, the Board finds that the SSA records are not relevant because it has not been indicated that PTSD was the basis for any SSA claim filed by the Veteran. As to a duty to provide an examination or opinion, the period of time at issue spans from March 30, 1968 to April 17, 2002. Thus, a more current psychiatric examination is not warranted. The reports of psychiatric examinations during and proximate to this period of time, along with voluminous treatment records, provide findings that are adequate for rating purposes. Under these circumstances, VA has no further duty to provide an examination or opinion. 38 C.F.R. §§ 3.326, 3.327. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Law and Regulations a. Calculation of Disability Ratings 38 U.S.C.A. § 1155 sets forth provisions governing disability ratings, and it directs the Secretary to "adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries." The schedule of ratings must provide for ten grades of disability, and no more, ranging from 10 percent to 100 percent in 10 percent intervals, upon which the payments of compensation shall be based. 38 U.S.C.A. § 1155. In addition, "the Secretary shall from time to time readjust this schedule of ratings in accordance with experience." 38 U.S.C.A. § 1155. To this end, the Secretary promulgated 38 C.F.R. § 3.321(a), which requires the use of a "Schedule for Rating Disabilities . . . for evaluating the degree of disabilities in claims for disability compensation . . . and in eligibility determinations." The provisions contained in the rating schedule approximate the average impairment in earning capacity in civil occupations resulting from a disability. 38 C.F.R. § 3.321(a); accord 38 U.S.C.A. § 1155 ("The ratings shall be based, as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations"). Separate diagnostic codes pertain to the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Effective November 7, 1996, substantive changes were made to the schedular criteria for evaluating psychiatric disorders. See 38 C.F.R. §§ 4.125-4.132 (1996); see also 61 Fed. Reg. 52695-52702 (1996). In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent that it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. In VAOPGCPREC 7- 2003, the General Counsel held that Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. The General Counsel held that the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. The General Counsel indicated that pursuant to Supreme Court and Federal Circuit precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. VAOPGCPREC 7-2003. In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised criteria for evaluating psychiatric disabilities. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Accordingly, VA must evaluate the veteran's service-connected PTSD under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114 (2008); VAOPGCPREC 3- 2000 (April 10, 2000); Kuzma, supra. Prior to November 7, 1996, psychiatric disabilities were evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9411. Under those criteria a 10 percent evaluation was warranted for PTSD with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation was warranted for PTSD when evidenced by definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms must result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOGCPREC 9-93. The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). To warrant a 50 percent evaluation, the veteran must demonstrate that his ability to establish or maintain effective or favorable relationships with people is considerably impaired. To warrant a 70 percent evaluation, there must be a severe impairment of the veteran's ability to establish and maintain effective or favorable relationships with people. The psychoneurotic symptoms must be of such a degree and persistence that the veteran's ability to obtain or retain employment is severely impaired. A 100 percent evaluation may be assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or there must be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought; or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or the veteran must be demonstrably unable to obtain or retain employment. With respect to evaluations under the revised criteria for rating PTSD, 38 C.F.R. § 4.130 sets forth the applicable schedule of ratings for mental disorders. 38 C.F.R. § 4.130. Specifically, Diagnostic Code 9440 governs general disability ratings for mental disorders, to include PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9440; see 38 C.F.R. § 4.130, Diagnostic Code 9411. Under such revised criteria, a 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for 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 for 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 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. The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) score represents the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness," is also important in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF score of 21 to 30 denotes behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g, sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends). A GAF score of 31 to 40 denotes 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). A GAF score of 41 to 50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 denotes 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 denotes some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pg. 47 (4th ed., revised 1994) (DSM-IV). b. Fenderson Appeal In the instant case, the Veteran has challenged the initial disability rating for PTSD, as opposed to having filed a claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). The Veteran thus seeks appellate review of the RO's initial disability rating because of his dissatisfaction with the 10 percent rating. See id. In a Fenderson appeal, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Id. at 126. The Board further notes that the rule that "the present level of disability is of primary importance," does not apply to a Fenderson appeal. Id. (recognizing that this rule "is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability") (internal quotation marks omitted); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (applying rule in increased rating case). Instead, the Board gives consideration to all the evidence of record from the date of the veteran's claim. Fenderson, 12 Vet. App. at 126-27. Additionally, "[w]hen after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the [veteran]." 38 C.F.R. § 4.3. "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." 38 C.F.R. § 4.7. c. Standard of Proof 38 U.S.C.A. § 5107 (West 2002) sets forth the standard of proof applied in decisions on claims for veterans' benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). III. Analysis The Veteran contends that he is entitled to at least a 30 percent rating for his service-connected PTSD for the entire time period at issue. See June 2007 Letter; March 2006 Letter. As support for this assertion, the Veteran claims that he has been unable to hold a steady job since leaving the Army. a. Factual Background As noted in the Board's January 2008 decision, the Veteran, who engaged in combat with the enemy and sustained serious combat injuries, filed his original claim for service connection for a nervous disorder in April 1968 or within several days of his separation from service. There is no post-service medical or psychiatric evidence of record dared prior to February 1978 pertaining to evaluation or treatment for PTSD or a nervous disorder In a February 1978 Report of Medical Examination for Disability Evaluation, which was filed in connection with a separate claim, the Veteran indicated that he had worked as a painter from August 1968 to November 1977 but that he was unemployed at the time and receiving state disability benefits. He complained of being "very nervous, can't sleep." In correspondence received May 1999, the Veteran indicated that he worked five days a week. In a March 2000 letter, the Veteran stated that he had not had a full night's sleep in more than 20 years due to pain from his service-connected disabilities. In an October 2001 VA treatment note, J.R.T. (initials used to protect privacy), D.O., noted that there was no history of PTSD. A December 2001 VA treatment note from J.R.T. indicates that the Veteran reported symptoms consistent with a panic attack. The impression was hypertension versus anxiety state. The clinician increased the Clonidine and said he would consider prescribing Zoloft. A January 2002 VA treatment note indicates that the Veteran started having panic attacks after September 11, 2001. The Veteran "agree[d] that a visit to mental hygiene clinic to deal with the panic would be appropriate." A March 2002 VA treatment note indicates that the Veteran had "no difficulty with anxiety or depression" until the September 2001 terrorist attacks, after which he began experiencing panic attacks (3-4 daily), nightmares, irritability, anxiety, and increased intrusive thoughts. The Veteran reported no inpatient or outpatient psychiatric treatment prior to September 2001. He was taking Zoloft and Clonidine. The assessment included chronic PTSD and "panic." The GAF score was 55. An April 2002 VA treatment note indicates that the Veteran reported having daily nightmares of his Vietnam experience for ten years after his discharge, but that he had not had any such dreams for five years. The Veteran complained of depression, daily intrusive thoughts about Vietnam, increased startle response, avoidance, and increased irritability. He indicated that these symptoms started after September 11, 2001. The clinician increased the Sertraline. The Veteran submitted to a July 2002 VA PTSD examination. He related an unstable work history due to pain from his service-connected disabilities. The doctor noted that that "for years [the Veteran] suppressed his Vietnam experience and did not dwell upon it although he did have some flashbacks and nightmares." The doctor further noted that the Veteran "managed to keep his Vietnam thoughts largely under control" until the September 2001 terrorist attack, after which he "had a great outburst of PTSD symptoms." The Veteran complained of nightmares, intrusive thoughts, a limited social life, irritability, difficulty concentrating, and hypervigilence. He was no longer having frequent panic attacks. The clinician gave a GAF score of 55 and concluded: [The Veteran] has had great difficulty for the last six months and this has caused both clinical and industrial impact so that all criteria are met. He actually was having symptoms long before this but he tended to deny or repress them so that PTSD to some extent could have been present for years, but unrecognized. In a May 2003 correspondence, the Veteran reported nightmares for over 30 years, sleep disturbances, flashbacks, irritability, and deep depressions. He stated that his PTSD "climaxed after 9/11/01" and that it took J.R.T. over one year of tests for heart disease to determine that he needed mental health treatment. He further stated that J.T.B. told him he had a severe "text book" case of PTSD and had had it for over 30 years. In a July 2003 correspondence, the Veteran stated that after his discharge he spent six months recovering from his war injuries as an inpatient at the Ft. Ord Hospital and six months as an outpatient. A September 2003 correspondence contains the following statement: In 1968 I was having so much trouble keeping my head together, and to be honest with you I don't remember the doctors I saw back then. Among others I remember seeing psychiatric doctors at Fort Ord Hospital and the VA in Palo Alto. In an April 2004 letter, Dr. C.S.P. indicated that he had treated the Veteran for 20 years and that most of that time was spent caring for his chronic pain issues. The Veteran began having symptoms of a panic disorder after September 11, 2001, which "turned out to be the tip of a PTSD iceberg he had submerged since Vietnam." In a March 2005 correspondence, the Veteran stated that the reason the VA had no record of treating him for PTSD symptoms prior to 2002 is because he went to the emergency room at a private hospital whenever he had a panic attack. He further stated that Dr. C.S.P. and J.T.B. thought he should be rated 30 to 50 percent for his PTSD during the applicable period. In a February 2008 correspondence, the Veteran stated that the private hospital where he received treatment for his panic attacks had closed. In a May 2006 letter, J.T.B., P.A., M.S.W., indicated that he had been treating the Veteran since March 2002. He made the following statement: You also asked me to estimate the severity of your PTSD after you were discharged from the Army after spending one year in the hospital secondary to wounds received in Vietnam. Based on the history you provided me I believe[] that your PTSD had a significantly strong negative impact on your employability at that time. b. Discussion As noted in the introduction to this decision, supra, a Board decision in January 2008 determined that the April 2004 RO decision assigning an earlier effective date of March 30, 1968 for the grant of service connection for PTSD, based upon the finding that the original claim for service connection was received within days of service, was not undebatably erroneous. Thus, the period of time at issue here is from March 30, 1968 through April 17, 2002. There is no post-service medical or psychiatric evidence of record dared prior to February 1978 pertaining to evaluation or treatment for PTSD or a nervous disorder In reviewing the medical and psychiatric evidence dated from February 1978 to September 10, 2001, the Board finds that the Veteran's service-connected PTSD was not productive of more than mild social and industrial impairment or, since November 7, 1996, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The preponderance of the evidence indicates that the disability was not manifested by definite social and industrial impairment or, since November 7, 1996, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In support of this part of the instant decision, the Board notes that, by all accounts, the Veteran was able to repress his PTSD symptoms until September 11, 2001. It was reported on multiple occasions that the veteran was essentially symptom free until September 11, 2001. It is apparent that the Veteran was not even under psychiatric care prior to that date. The Board also finds highly relevant that several clinicians found that the Veteran was essentially stable during this timeframe and a 10 percent rating contemplates mild symptoms. Although the Board is cognizant that one of the Veteran's main complaints during this time period was sleep disturbance, and chronic sleep impairment is one of the symptoms listed as supporting a 30 percent rating, it is evident from the clinical record that pain from the Veteran's service-connected injuries was responsible for the majority of his sleep problems. The Board has considered a May 2006 social worker's statement that based on the history he provided, his PTSD had a significantly strong negative impact on his employability after he was discharged from the Army. However, as noted above, the Veteran indicated on multiple occasions that he was basically symptom free prior to September 11, 2001 and these statements were obtained for treatment purposes from January to July 2002. In the Board's judgment, such contemporaneously recorded statements have more weight than the statements made years later, after the Veteran filed his claim for increased compensation benefits. Accordingly, a rating in excess of 10 percent for PTSD is not warranted at any time prior to September 11, 2001 under the criteria in effect prior to or since November 7, 1996. However, the Board determines that the Veteran's PTSD warrants a 70 percent rating from September 11, 2001 through April 17, 2002. The treatment records and examination reports indicate that, since September 11, 2001, the Veteran has presented symptoms which amount to deficiencies in most areas of social and occupational functioning. VA treatment notes from October 2001 to March 2002 indicate that the Veteran was initially treated for hypertension and/or heart disease. However, he was eventually diagnosed with debilitating panic attacks, which typify a 70 percent rating. 38 C.F.R. § 4.130. In addition, the Veteran also reported continuous irritability and outbursts of anger, along with recurrent panic attacks, which would also support a 70 percent rating. Id. Furthermore, the medical evidence indicates that the Veteran had a mood disturbance in the form of depression. The assigned GAF scores of 55 indicate moderate disability. See 38 C.F.R. § 4.130. However, the medical evidence indicates that as of September 11, 2001, the Veteran began experiencing sleep disturbances, anxiety, nightmares, hypervigilance, and exaggerated startle response. The next highest rating of 100 percent is not warranted. The medical and psychiatric evidence of record does not show that the Veteran's attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. There is no indication of totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought; or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. The evidence does not show that the veteran was demonstrably unable to obtain or retain employment due solely to his PTSD. In addition, in reviewing the criteria that have been in effect since November 7, 1996, the Board finds that the record does not reflect that the Veteran experienced persistent delusions, gross impairment of thought process or communication, grossly inappropriate behavior, persistent danger of hurting himself or others, or that he had memory loss for names of close relatives or his own name, as would be indicative of a 100 percent rating. The evidence does not indicate that the Veteran had any hallucinations. Furthermore, the evidence does not indicate that the Veteran exhibited disorientation as to time or place, as would support a 100 percent evaluation. Although the Veteran indicated that he no longer worked and felt he was unable to work, he has repeatedly related an unstable work history due to pain from his service-connected disabilities. As such, the Board finds that a higher rating of 100 percent from September 11, 2001 through April 17, 2002 is not warranted. Extraschedular Ratings As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, whether or not the veteran raised them, including § 3.321(b)(1), which governs extraschedular ratings. The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2008). As indicated above, the preponderance of the evidence indicates that the Veteran's PTSD was asymptomatic and not productive of any appreciable impairment prior to September 11, 2001. With regard to the current rating in effect since September 11, 2001, it is pertinent to point out that a 70 percent rating takes into account severe social and industrial impairment. There is no indication that the Veteran's PTSD has necessitated frequent hospitalizations or has caused a marked interference with employment or other comparable effects since September 11, 2001. In the absence of such factors, the criteria for submission for assignment of an extraschedular rating for his PTSD pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). IV. Conclusion In view of the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's PTSD at any time prior to September 11, 2001, and while the record supports an increased rating to 70 percent effective September 11, 2001, the preponderance of the evidence is against a rating in excess of 70 percent at any time from that date. Thus, the benefit of the doubt doctrine is not applicable and the claim for a rating in excess of 10 percent for PTSD from March 30, 1968 through September 10, 2001, or a rating in excess of 70 percent from September 11, 2001, is not warranted. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to an initial or staged rating in excess of 10 percent for PTSD from March 30, 1968 to September 10, 2001 is denied. A staged rating of 70 percent for service-connected PTSD, but no more than 70 percent, is granted from September 11, 2001 to April 17, 2002, subject to the law and regulations governing the payment of VA monetary benefits. ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs