Citation Nr: 1008226	
Decision Date: 03/05/10    Archive Date: 03/11/10

DOCKET NO.  07-30 093	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North 
Little Rock, Arkansas


THE ISSUE

Entitlement to an increased evaluation for posttraumatic 
stress disorder (PTSD), currently rated as 50 percent 
disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and Mrs. M.


ATTORNEY FOR THE BOARD

J. Schroader, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1967 to 
December 1987.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) 
located in North Little Rock, Arkansas that granted service 
connection for PTSD and assigned a 50 percent disability 
rating.

The Veteran personally appeared before a Travel Board hearing 
in August 2009 in North Little Rock, Arkansas, and a 
transcript of such hearing has been associated with the 
claims file.

The Board acknowledges that the Veteran filed a separate 
claim in February 2009 for a total disability rating based on 
individual unemployability due to his service-connected PTSD, 
which claim was separately adjudicated and denied by way of 
an October 2009 RO decision, and the Veteran has not 
perfected an appeal with respect to that claim.  See 
38 C.F.R. § 20.1103 (2009).  The Board further notes that, at 
the Travel Board hearing, the Veteran, by way of his 
representative, acknowledged that the only issue before the 
Board was entitlement to a higher initial rating for his 
service-connected PTSD.  The Board thus not need consider the 
issue of entitlement to TDIU.  See Rice v. Shinseki, 22 Vet. 
App. 447, 454 (2009) (noting in a footnote that initial 
ratings and TDIU claims may be separately adjudicated).

The Board refers the issue of entitlement to service 
connection for Parkinson's disease, and the issue of whether 
new and material evidence has been submitted sufficient to 
reopen a claim of entitlement to service connection for a 
lipoma or neurofibroma of the neck, to the RO for 
adjudication.




FINDING OF FACT

The Veteran's PTSD has been manifested by depressed mood, 
sleep impairment, including nightmares, unprovoked anger and 
irritability, near-continuous panic and depression, 
intermittent suicidal ideation, difficulty adapting to 
stressful situations, and the inability to maintain effective 
social and work relationships; however, there is no evidence 
that the Veteran's PTSD (as opposed to symptoms related to 
his non-service connected Parkinson's disease) results in 
virtual isolation in the community; 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; a 
demonstrable inability to obtain or retain employment; or 
that he suffers from 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 place; or, 
memory loss for names of close relatives, own occupation, or 
own name.


CONCLUSION OF LAW

The criteria for a rating of 70 percent disabling for PTSD 
have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 
4.1, 4.7, 4.130, Diagnostic Code 9411 (2009).



	(CONTINUED ON NEXT PAGE)




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's claim for a higher initial 
rating for his service-connected PTSD, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) 
(2009).

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is generally required 
to "notify the claimant and the claimant's representative, 
if any, of any information and any medical or lay evidence 
not previously provided . . . that is necessary to 
substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West 
Supp. 2009).  As part of that notice, VA must "indicate 
which portion of that information and evidence, if any, is to 
be provided by the claimant and which portion, if any, the 
Secretary . . will attempt to obtain on behalf of the 
claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2009).  The 
requirements apply to all five elements of a service 
connection claim: veteran status, existence of a disability, 
a connection between the veteran's service and the 
disability, degree of disability, and effective date of the 
disability.  See Dingess v. Nicholson, 19 Vet. App. 473 
(2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 
(Fed. Cir. 2007).

The Board notes that where service connection has been 
granted and an initial rating has been assigned, the claim of 
service connection has been more than substantiated, as it 
has been proven.  As such, 38 U.S.C.A. § 5103(a) notice is no 
longer required since the purpose that the notice was 
intended to serve has been fulfilled.  Furthermore, once a 
claim for service connection has been substantiated, the 
filing of a notice of disagreement with the rating of the 
disability does not trigger additional 38 U.S.C.A. § 5103(a) 
notice.  Therefore, any defect as to 38 U.S.C.A. § 5103(a) 
notice is nonprejudicial.  See Dingess v. Nicholson, 19 Vet. 
App. 473, 490-491 (2006), aff'd sub nom. Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. 
Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. 
App. 128 (2008) (where a claim has been substantiated after 
the enactment of the VCAA, the appellant bears the burden of 
demonstrating any prejudice from defective VCAA notice with 
respect to any downstream elements).  Nevertheless, the Board 
finds that a letter dated March 2007 fully satisfied the 
notice requirements of the VCAA with respect to the Veteran's 
claim for an increased initial rating.

The Board also concludes that VA's duty to assist has been 
satisfied.  The Veteran's service treatment records, VA 
treatment records, and private treatment records are all in 
the file.  The Veteran has at no time referenced any 
outstanding records or private treatment records that he 
wanted VA to obtain or that are potentially relevant to his 
claim.

The duty to assist includes, when appropriate, the duty to 
conduct a thorough and contemporaneous examination of the 
Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In 
addition, where the evidence of record does not reflect the 
current state of a veteran's disability, a VA examination 
must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 
589 (1991); 38 C.F.R. § 3.327(a) (2008).

The Veteran was provided with VA examinations in connection 
with his request for a higher initial rating for his PTSD 
disability in April 2007 and, more recently, in December 
2008.  He was previously provided with a January 2006 VA 
examination in connection with his prior claim for service 
connection for PTSD.  There is no objective evidence 
indicating that there has been a material change in the 
severity of the Veteran's service-connected PTSD since he was 
last examined in December 2008.  See 38 C.F.R. § 3.327(a) 
(2008).  The duty to assist does not require that a claim be 
remanded solely because of the passage of time since an 
otherwise adequate examination was conducted.  VAOPGCPREC 11-
95.  The Board finds the above VA examination reports are 
thorough and complete and adequate upon which to base a 
decision with regard to this claim.  The examiners personally 
reviewed the claims file and examined the Veteran, and their 
reports provide sufficient detail to rate the Veteran under 
the applicable diagnostic criteria.

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 
537.

II. Analysis

Disability evaluations are determined by comparing a 
veteran's present symptomatology with criteria set forth in 
VA's Schedule for Rating Disabilities (Rating Schedule), 
which is based on average impairment of earning capacity.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009).  When a 
question arises as to which of two ratings apply under a 
particular diagnostic code, the higher evaluation is assigned 
if the disability more closely approximates the criteria for 
the higher rating.  38 C.F.R. § 4.7 (2009).  After careful 
consideration of the evidence, any reasonable doubt remaining 
is resolved in favor of the veteran.  38 C.F.R. § 4.3 (2008).  
When the evidence is in relative equipoise, the veteran is 
accorded the benefit of the doubt.  See 38 U.S.C.A. § 5107(b) 
(West 2002).  

Where, as in the instant case, an appeal arises from the 
original assignment of a disability evaluation following an 
award of service connection, the severity of the disability 
at issue is to be considered during the entire period from 
the initial assignment of the disability rating to the 
present time.  See Fenderson v. West, 12 Vet. App. 119 
(1999).

The Diagnostic Code 9411 criteria for disability ratings of 
50 percent, 70 percent, and 100 percent are as follows:

50 percent - 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 effective 
work and social relationships.

70 percent - 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 that 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 work-like setting); inability to establish and 
maintain effective relationships.

100 percent - 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 (2009).

The use of the phrase "such symptoms as" followed by a list 
of examples provides guidance as to the severity of 
symptomatology contemplated for each rating.  The use of such 
terminology permits consideration of items listed as well as 
other symptoms and contemplates the effect of those symptoms 
on the claimant's social and work situation.  See Mauerhan v. 
Principi, 16 Vet. App. 436 (2002).

The Global Assessment of Functioning (GAF) Scale is used to 
report a clinician's judgment of an individual's overall 
level of functioning.  The GAF Scale is to be rated with 
respect only to psychological, social, and occupational 
functioning.  Diagnostic and Statistical Manual of Mental 
Disorders (DSM-IV) at 44 (1994).  GAF scores range from 1-
100, with the higher numbers representing higher levels of 
functioning.  A score of 61 to 70 reflects some mild symptoms 
(e.g., depressed mood and mild insomnia) or some difficulty 
in social, occupational, or school functioning, but generally 
functioning pretty well and having some meaningful 
interpersonal relationships.  Id. at 46.  A score of 51 to 60 
reflects 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).  Id. 
at 47.  A score of 41 to 50 reflects serious symptoms, such 
as suicidal ideation or serious impairment in social or 
occupational functioning (e.g., no friends or unable to keep 
a job).  A score of 31 to 40 reflects some impairment in 
reality testing or communication (e.g., speech is illogical 
at times or irrelevant) or major impairment in several areas, 
such as work, school, family relations, judgment, thinking, 
or mood (e.g., depressed man avoids friends, neglects family, 
and is unable to work).

The Veteran's PTSD has been assigned by the RO a rating of 50 
percent disabling under Diagnostic Code 9411.  The Veteran 
seeks a higher initial rating.

As an initial matter, the Board notes that VA treatment 
records reflect that during the period on appeal, the Veteran 
was treated for several neurological disorders, including 
Parkinson's disease, dysarthria, and spastic hemiplegia.  
See, e.g., VA Examination Report, April 2007.  A November 
2005 private treatment record from a neurologist reflects 
that he diagnosed the Veteran with progressive supranuclear 
palsy (PSP)/corticobasal ganglion degeneration (CBD).  VA 
medical records reflect that, during the period on appeal, 
the Veteran required assistance from his wife and a part-time 
caregiver in order to perform several activities of daily 
living, including feeding and bathing.  See, e.g., VA 
Examination Reports, April 2007 (Axis III diagnoses) and 
December 2008 (caregiver four hours per day while wife at 
work); VA Treatment Record, March 2007 (activities of daily 
living).  The Board further notes that several VA treatment 
records reflect that, due to the Veteran's neurological 
disorders, it was often difficult for clinicians to 
communicate with the Veteran, and at times he used a keyboard 
to answer questions or he answered with the assistance of his 
wife.  See, e.g., VA Examination Reports, April 2007.  
According to the Veteran's wife, the Veteran resided in a 
nursing home for a short period between February 2008 and 
April 2008 due to his physical condition, but his wife 
reported taking him home because he reported feeling 
depressed there.  See, e.g., VA Examination Report, December 
2008 at 2; Hearing Transcript, August 2009 at 14-15.

With regard to the Veteran's mental status, VA treatment 
records dated December 2004 through January 2009, as well as 
VA examination reports dated January 2006, April 2007, and 
December 2008, reflect that the Veteran was diagnosed with a 
PTSD as well as a depressive disorder and a delusional 
disorder relating to his wife's fidelity.  The above VA 
treatment records and VA examination reports demonstrate 
findings relating to the Veteran's PTSD of depressed mood, 
sleep impairment, including nightmares, unprovoked anger and 
irritability, near-continuous panic and depression, 
intermittent suicidal ideation, difficulty adapting to 
stressful situations, and the inability to maintain effective 
social and work relationships.  The VA examination reports 
and VA treatment records reflect GAF scores in the serious 
range to moderate (35 to 52), with the most recent, December 
2008 VA examination report reflecting a GAF score of 52 
relating specifically to the Veteran's PTSD.  The Board notes 
that the above treatment records are consistent with the 
testimony of the Veteran and his wife at the August 2009 
Travel Board hearing.

The Board notes that while the January 2006 VA examiner 
opined that the Veteran's depression was related to his 
physical condition (as opposed to his PTSD), the December 
2008 VA examiner opined that the Veteran's depression and 
suicidal ideation were partially attributable to his service-
connected PTSD, while acknowledging that the Veteran also 
experienced depression relating to his physical 
incapabilities.  Resolving doubt in favor of the Veteran on 
this issue, the Board finds that the Veteran's symptoms of 
depression and suicidal ideation relate to his service-
connected PTSD.  See Mittleider v. West, 11 Vet. App. 181 
(1998) (finding that when it is not possible to separate the 
effects of the service-connected condition from a nonservice-
connected condition, 38 C.F.R. § 3.102, which requires that 
reasonable doubt on any issue be resolved in the veteran's 
favor, clearly dictates that such signs and symptoms be 
attributed to the service-connected condition).

With regard specifically to the Veteran's level of social 
impairment, the January 2006 VA examination report reflects 
that the Veteran reported being socially isolated due to his 
physical condition.  Objective findings in the April 2007 VA 
examination report include that the Veteran's relationships 
seemed poor, with low frequency of contact with others.  
While the April 2007 VA examination report also noted certain 
physical limitations of the Veteran due to his neurological 
disorders and that the Veteran himself reported that he could 
not go places because of his physical condition, the VA 
examiner never attributed the Veteran's poor relationships to 
his physical condition as opposed to his PTSD or another 
mental disorder.  The most recent, December 2008 VA examiner 
specifically noted that the Veteran's PTSD manifested by 
symptoms including an inability to establish and maintain 
effective relationships, and the examiner noted that the 
Veteran had no friends.  The Board notes that while the 
Veteran is still married to his wife of 28 years who provides 
most of his care, reports of significant marital difficulties 
(made by both parties) are noted throughout the VA treatment 
records and in the hearing transcript.  See, e.g., VA 
Treatment Records, January 2005 and October 2005.  

With regard to the Veteran's level of occupational 
impairment, the Board notes that the Veteran has consistently 
reported to the United States Army, the Social Security 
Administration (SSA), and to VA clinicians that he stopped 
working as a civilian food service manager for the United 
States Army in 2002 (after he retired from 20 years of active 
service in 1987) due to his physical conditions, not due to 
any mental condition.  See, e.g., Form SSA-3368-BK, August 
2002; EBB Form 766-R, August 2002 (Army Disability 
Application); VA Treatment Record, December 2005; VA 
Examination Report, December 2008.  At the same time, 
however, the Board acknowledges some level of occupational 
impairment due to the Veteran's PTSD.  Likewise, the December 
2008 VA examiner opined that the Veteran had some 
occupational impairment due to his PTSD (although he did not 
indicate the extent of such impairment).

In light of the above, the Board finds that the symptoms of 
the Veteran's PTSD more nearly approximate a disability 
rating of 70 percent, but certainly no more.  The Veteran 
does not exhibit symptoms warranting a higher, 100 percent 
rating under the rating criteria, such as gross impairment of 
thought processes or communication, persistent delusions or 
hallucinations, grossly inappropriate behavior, intermittent 
inability to perform activities of daily living (due to PTSD 
as opposed to physical conditions), disorientation as to time 
or place, memory loss of names of relatives, own occupation, 
or own name.  While the Board acknowledges that the Veteran 
reported experiencing seeing ghosts from Vietnam a few times 
to VA clinicians, a majority of the VA treatment records and 
examination reports are negative for complaints of 
hallucinations; and, therefore, the Board finds such reports 
of seeing ghosts to be inconsistent and sporadic.  See e.g., 
VA Treatment Records, November and December 2004 (reporting 
seeing ghosts); cf. VA Examination Report (no evidence of 
hallucinations).  Indeed, even if hallucinations were 
established, there is strong evidence showing that they are a 
symptom/side effect of his taking ropinirole or baclofen, 
which are medications the Veteran takes for his non-service 
connected Parkinson's disease.  See VA Treatment Record, 
November 2004.  Moreover, while the Veteran reported seeing 
ghosts to the December 2008 VA examiner, the examiner 
nevertheless found the Veteran's thought process to be within 
normal limits and no objective finding of hallucinations was 
made.  

The Board notes that the Veteran's reported GAF scores have 
ranged from 35 to 52 in the records described above.  See, 
e.g., VA Treatment Record, June 2007 (GAF 35).  Specifically, 
the January 2006 and April 2007 VA examination reports 
reflect that, due to his PTSD, his GAF score was 52, and the 
December 2008 VA examination report reflects that his GAF 
score was 45.  GAF scores are not, however, in and of 
themselves the dispositive element in rating a disability, 
and the Board generally places more probative weight on the 
specific clinical findings noted on examinations, which, in 
this case, do not demonstrate a degree of impairment 
consistent with more than a 70 percent rating.  Nevertheless, 
the Board finds that a 70 percent disability rating for PTSD 
more than adequately contemplates GAF scores in the range of 
35 to 52.  

The Board has also considered the potential application of 
other various provisions, including 38 C.F.R. § 3.321(b)(1), 
for exceptional cases where scheduler evaluations are found 
to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 
589 (1991).  However, for the reasons previously discussed, 
the Board concludes that the 70 percent rating assigned 
herein more than adequately contemplates the degree of social 
and occupational impairment resulting from the Veteran's 
PTSD.  The Board finds that the Veteran's PTSD has not been 
shown to markedly interfere with his employment (i.e., beyond 
that contemplated in the assigned rating), to warrant 
frequent periods of hospitalization, or to otherwise render 
impractical the application of the regular schedular 
standards.  As discussed in detail above, the Veteran 
consistently reported to the U.S. Army (his former employer 
until he retired), SSA, and to several VA clinicians that he 
stopped working in 2002 due to his physical conditions, not 
his mental conditions.  To the extent that he now argues that 
his PTSD resulted in his unemployment, the Board finds such 
statements to lack credibility.  Curry v. Brown, 7 Vet. App. 
59, 68 (1994) (contemporaneous evidence has greater probative 
value than history as reported by the claimant).  With the 
exception of the December 2008 VA examiner's opinion that the 
Veteran's PTSD resulted in occupational impairment, the Board 
notes that there is no objective evidence of record of any 
impairment of the Veteran's ability to perform work due to 
his PTSD.  Indeed, the December 2008 examiner clearly 
indicated that it was the Veteran's dementia that caused his 
total occupational and social impairment.  Therefore, as the 
Veteran's PTSD has not necessitated frequent periods of 
hospitalization (albeit the Board acknowledges a June 2008 
hospitalization for reported suicidal ideation, which the 
Board weighed heavily in assigning the 70 percent rating 
despite the medical evidence of record reflecting the Veteran 
often reported feeling depressed and, at times, suicidal due 
to his physical condition, see, e.g., VA Examination report, 
April 2007) and has not otherwise rendered impractical the 
application of the regular schedular standards utilized to 
evaluate the severity of the disability, the Board finds that 
the requirements for an extraschedular evaluation under 38 
C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 
Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 
(1995).

In summary, having resolved doubt in favor of the Veteran, 
the Board concludes that the Veteran's PTSD symptoms more 
nearly approximate a disability rating of 70 percent 
disabling, but not more.  See 38 U.S.C.A. § 5107(b) (West 
2002); 38 C.F.R. § 4.3 (2008).  Assignment of staged ratings 
is not for application.  See Fenderson v. West, supra.





ORDER

Entitlement to an evaluation of 70 percent disabling for PTSD 
is granted, subject to the law and regulations governing the 
payment of monetary benefits.



____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs