Citation Nr: 1042872 Decision Date: 11/15/10 Archive Date: 11/24/10 DOCKET NO. 06-35 510 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a left ankle sprain with traumatic calcification. 2. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD), for the period prior to June 26, 2008. 3. Entitlement to a rating in excess of 10 percent for PTSD with alcohol dependence, for the period from June 26, 2008 to January 15, 2010. 4. Entitlement to a rating in excess of 70 percent for PTSD with alcohol dependence, for the period from January 15, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his father ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from December 2001 to December 2005 and was awarded a Purple Heart and a Combat Action Ribbon. These matters came before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision, in which the RO, in pertinent part, granted service connection for a left ankle sprain with traumatic calcification (left ankle disability) and for PTSD and assigned separate initial 10 percent ratings, effective December 4, 2005. Subsequently, in a September 2006 rating decision, the RO assigned an initial 20 percent rating for the Veteran's left ankle disability, effective December 4, 2005. Later, in a May 2010 rating decision, a 70 percent rating for PTSD with alcohol dependence was assigned, effective January 15, 2010. Because the Veteran is presumed to be seeking the maximum available benefit for a disability, the claims for an initial rating in excess a 10 percent prior to January 15, 2010, and a rating in excess 70 percent from January 15, 2010, for PTSD with alcohol dependence remain viable issues on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board has characterized the issues as listed on the title page. In June 2008, the Veteran and his father testified during a Travel Board hearing before the undersigned Veterans Law Judge at the RO; a copy of the hearing transcript is associated with the record. In April 2009, the case was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since the award of service connection, the Veteran's left ankle disability generally has been manifested by marked limitation of motion, intermittent swelling, pain, tenderness, and x-ray evidence of minimum degenerative changes of the medial talotibial joint without ankylosis of the joint. 2. Prior to June 26, 2008, the medical evidence of record fails to show that Veteran's PTSD was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress as he was receiving no treatment or medication for his PTSD symptoms during this period. 3. From June 26, 2008 through January 14, 2010, the Veteran's PTSD was manifested by nightmares, intrusive thoughts, hypervigilance, startle reaction, irritability, some short-term memory loss, depressed mood, difficulty maintaining relationships with family members (mother and sisters), and loss of interest in familiar activities, approximating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. There was no evidence of panic attacks more than once a week, difficulty understanding complex commands, flattened affect, circumstantial, circumlocutory, or stereotyped speech; there also was no evidence of impaired impulse control, obsessional rituals, neglect of personal appearance and hygiene, disorientation to time or place, hallucinations, delusions, suicidal or homicidal ideations, or communication or thought process deficits. 4. From January 15, 2010, the Veteran's PTSD with alcohol dependence has been productive of occupational and social impairment, with deficiencies in most areas such as work, family relations, judgment, and mood, due to such symptoms as nightmares and chronic sleep problems, intrusive memories, flashbacks, anger and irritability, avoidant behavior, disturbances of mood, difficulty in adapting to stressful circumstances, and an inability to establish and maintain work and social relationships CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a left ankle sprain with traumatic calcification have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.71, 4.71a, Diagnostic Code 5271 (2009). 2. The criteria for an initial rating in excess of 10 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.130 Diagnostic Code 9411 (2005- 2007). 3. Resolving all doubt in the Veteran's favor, the criteria for a 30 percent rating for PTSD have been met, for the period from June 26, 2008 to January 15, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.130 Diagnostic Code 9411 (2007-2009). 4. The criteria for a rating in excess of 70 percent for PTSD with alcohol dependence have not been met, for the period from January 15, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.130 Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The claim arises from disagreement with the initial ratings assigned following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). 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 the downstream elements. Id. The record also reflects that VA has made reasonable effort to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent evidence associated with the claims file consists of service treatment records, post-service treatment records, a hearing transcript, lay statements, and the reports of December 2005, July 2008 and January 2010 VA and VA fee-basis examinations. These examination reports, along with the other evidence of record are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additional VA treatment records and a June 2009 VCAA notice letter were associated with the record in compliance the Board's remand. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Under these circumstances, the Board concludes that the Veteran has been accorded ample opportunity to present evidence and argument in support of the matters decided on appeal. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the matters decided on appeal. II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Left Ankle Pursuant to Diagnostic Code 5010, arthritis due to trauma substantiated by x-ray findings is to be rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a. Normal range of motion in an ankle is considered to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Since the award of service connection, the Veteran's left ankle disability has been evaluated as 20 percent disabling under Diagnostic Code 5271 for limitation of motion. Under that diagnostic code, a maximum 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Alternatively, the Board has considered Diagnostic Code 5270, for ankylosis. Under this diagnostic code, a 20 percent rating is warranted for ankylosis in plantar flexion less than 30 degrees. A 30 percent evaluation is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A maximum 40 percent evaluation requires ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). In the absence of ankylosis, a service-connected disability may not be rated based on ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Another potentially applicable diagnostic code in light of the record is Diagnostic Code 5262, for impairment of the tibia and fibula (pertaining to the ankle rather than the knee in this instance). Under this diagnostic code, nonunion of the tibia and fibula with loose motion, requiring a brace, is rated a maximum 40 percent disabling. Malunion of these bones, with marked ankle disability, is rated 30 percent disabling. With moderate ankle disability, a 20 percent rating is assigned, and, with slight ankle disability, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2005-2009); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In light of the above legal criteria, the Board finds that the preponderance of the evidence is against an initial rating in excess of 20 percent for his left ankle disability, since the award of service connection. Service treatment records showed treatment following sprains of the left ankle on two separate occasions during active duty. April 2005 x-rays revealed spurring at the anterior talus bone, without evidence of fracture, after a repelling injury. He was never returned to full active duty because of his ankle. During a December 2005 VA examination, the Veteran complained that his ankle hurt primarily over the medial malleolus, and sometimes over the lateral malleolus, more with activity. He denied flare-ups, but indicated that there was increased pain with increased activity, humidity and coldness. Rest was the only treatment. Dorsiflexion was to "0" degrees and plantar flexion ranged between 50 and 60 degrees. When he stood, the Veteran had normal alignment of the os calcis with respect to the tibia and fibula. X-rays reveals calcification adjacent to the medial malleolus, most likely posttraumatic according to the VA examiner. The impression was left ankle sprain, calcification secondary to service-incurred injury. Based on the above, in a January 2006 rating decision, the RO granted service connection for a left ankle disability and assigned an initial 10 percent rating for moderate limitation of motion. During a January 2006 VA primary care visit, the Veteran reported that his left ankle had been bothering him with significant pain. On examination, his left ankle was not swollen, bruised, red or warm compared to the right ankle. The impression was left ankle sprain. A February 2006 VA consultation note shows that the Veteran complained that his ankle hurt, more medial than lateral, and that pain was activity related. He was aware of some swelling and was limited in what he could do because of his ankle. On examination, the left ankle was somewhat larger than the right ankle. It was tender over and behind and below the medial malleolus, more than elsewhere. Dorsiflexion and plantar flexion were slightly limited by 5 or 10 degrees. Inversion caused some pain, eversion did not. A February 2006 magnetic resonance imaging (MRI) revealed six abnormalities, of which one, flexor hallucis longus tenosynovitis was in the areas where the Veteran had discomfort. A long-acting anti-inflammatory medication, Feldene, was prescribed, along with ice, and a home exercise program (HEP). When seen for a follow-up in April 2006, the Veteran reported that the Feldene did help when he took it. He requested an ankle support for when he is on his feet for longer periods of time and his ankle still bothered him. On examination, there was good range of motion, along with tenderness behind the medial malleolus. Additional physical therapy and an elastic ankle support were recommended. Later the same month, a physical therapy consultation report revealed that the MRI had showed a travecular injury versus early osteochondritis of the posterior talar dome; small erosion of the tibial plafond anteriolaterally; an approximately 2.1 cm. low grade intrasubstance tear of the Achilles tendon with erosion of the lateral margin calcaneal insertion; flexor hallucis longus tenosynovitis; questionable os trigonum syndrome; and small erosion of the talar aspect of the middle subtalar joint. The Veteran was wearing a soft ankle support. Active range of motion was: dorsiflexion to 10 degrees, plantar flexion to 45 degrees, and inversion and eversion to 10 degrees, each. Pain was noted on palpation at the posterior Achilles and medial malleolus of the left ankle and at the flexor hallucis longus and at the deltoid ligament. No significant edema, discoloration or hyperthermia was present. The left ankle was positive for laxity of the anterior talofibular ligament. Following a month of physical therapy, the Veteran reported no change in his left ankle, which continued to reach pain levels of 8/10 on a scale of 1 to 10 and that use of a brace on the left ankle also did not seem to help. Based partially on the above VA outpatient treatment records, in a September 2006 rating decision, the RO assigned an initial 20 percent rating for the Veteran's left ankle disability, retroactively effective as of December 4, 2005, noting that his disability approximated marked limitation of motion without any evidence of ankylosis. At his Travel Board hearing, the Veteran testified that his left ankle swells and that his pain is worse with certain weather conditions, such a humidity. He indicated that he could walk for two miles, on concrete or asphalt, but maybe 1/4 mile on uneven terrain. The Veteran reported that he had problems going up and down hills or stairs and whenever he was going from side to side. He took an anti-inflammatory (Naproxen) for pain and inflammation. He stated that he was issued a brace by VA. Because of his left ankle disability, he cannot jog or run, does not hike or mountain bike, or do anything with the ankle rather than use it for work. The Veteran estimated that he lost anywhere from 48 to 72 hours of work time during the last years as a landscaper. During a July 2008 VA physical therapy evaluation done primarily for low back pain, the Veteran reported that it was his left ankle that limited his activity. He complained of chronic left ankle pain. He indicated that the ankle was "tricky," because "you never know what is going to happen." Left ankle range of motion was within full limits (WFL) for dorsiflexion, plantar flexion, pronation and supination. The Veteran complained of left ankle pain upon attaining extreme range of motion of all ankle motions. He demonstrated a symmetrical and reciprocal gait pattern and did not use any assistive device to ambulate. The examiner noted that the Veteran already had had an extensive amount of physical therapy for his left ankle, but recommended referral to podiatry for an evaluation for possible bracing or orthotic suggestions that might remedy some of his left ankle/foot pain. No further physical therapy services were recommended for the left ankle, as the Veteran had a home exercise program he could do on his own. During a January 2010 VA joints examination, the Veteran reported that his left ankle had gotten progressively worse since onset. The Veteran denied giving way, incoordination, effusion, and episodes of dislocation, locking or subluxation. He complained of instability, pain, weakness, swelling and moderate flare-ups every two to three weeks, lasting hours. Flare-ups were precipitated by crossing legs, or abnormal motions. Icing, Proxiam, rest, and elevation alleviated symptoms. During flare- ups at work, the Veteran avoided climbing ladders and carrying heavy objects due to pain. There were no constitutional symptoms of arthritis. The Veteran stated that he was able to walk more than 1/4 mile but less than 1 mile. He used no assistive devices, but wore a wrap intermittently. On examination, there was no joint deformity, instability or tendon abnormality; however, crepitus was present. There also was evidence of abnormal weight bearing and shoe wear pattern with increased wear on the outside edge of the heel. Squeeze, external rotation, and anterior drawer tests were negative. Talar tilt revealed 5 degrees on the left compared to a negative test on the right. There was objective evidence of pain with active motion and following repetitive motion on the left, without additional limitation after three repetitions of range of motion. Left ankle dorsiflexion was from 0 to 15 degrees and plantar flexion was from 0 to 30 degrees. There was no ankylosis of the left ankle joint. X-rays revealed minimum degenerative changes of the medial talotibial joint. The Veteran indicated that he had lost 16 weeks of work during the last 12-month period due to ankle pain. The diagnosis was degenerative joint disease of the left ankle. The examiner added that the Veteran's left ankle disability had significant effects on his occupational activities resulting in assignment of different duties and increased absenteeism. Effects on the Veteran's daily activities were noted as: none for sports, traveling, feeding, bathing, dressing, toileting, or grooming; mild for driving; and moderate for chores, shopping and recreation. In light of the above, the Board finds that the preponderance of the evidence approximates marked limitation of motion of the ankle. Hence, the Veteran meets the criteria for the maximum 20 percent rating for his left ankle knee under Diagnostic Code 5271, during the entire appeal period. However, without evidence of impairment of the tibia and fibula or of ankylosis of the left ankle, a higher rating is not warranted under Diagnostic Codes 5262 or 5270. 38 C.F.R. § 4.71a, Diagnostic Code 5262 and 5270. An increased rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 also is not warranted. The Veteran denied giving way, incoordination, effusion, and episodes of dislocation, locking or subluxation. And, although he complained of instability, pain weakness, swelling and moderate flare-ups every two to three weeks, lasting hours, no additional limitation of motion was noted after three repetitions of range of motion on examination. Moreover, squeeze, external rotation, and anterior drawer tests were negative. Thus, the Board finds that any pain or functional loss associated with the left ankle disability is accounted for under the current 20 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5271; DeLuca, 8 Vet. App. at 204-07. B. PTSD During his June 2008 Travel Board hearing, the Veteran testified that he had not been seen by VA for his PTSD since his December 2005 examination. He felt that his PTSD was getting worse. The Veteran reported that he really did not like seeing other people, especially in the morning when he wakes up, and that he tended to isolate himself. He no longer hikes or did mountain biking. After work, he went home, turned on the air conditioner and sat in front of the television. He did not go out, go for walks or go to a lot of social events. The Veteran admitted that he lost his driver's license because of a DUI and that he had been drinking a lot more since he came home from service. He felt that there was a relationship between his PTSD and his drinking. The Veteran denied taking medication for his PTSD and any mental health treatment by the VA or at the Vet Center, because he had no way to get there now that he did not have a license. He indicated that his PTSD affected the jobs that he would take, because he really did not like working around a lot of people. The Veteran testified that he had had about five jobs since service, the longest one lasting about seven months. He denied losing his temper with his employers but he did have problems with his co-workers and motivation. The Veteran stated that he checks that all the doors are locked at night, that he becomes disoriented at times, and forgets where he put his wallet down, etc. The Veteran's PTSD has been evaluated as 10 percent disabling, prior to January 15, 2010, and as 70 percent disabling, from January 15, 2010, under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 10 percent is assigned when there is 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 are controlled by continuous medication. A 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When it is not possible to separate the effects of the service- connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Board also notes that, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), reh'g en banc denied, 268 F.3d 1340 (2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 U.S.C.A. § 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability, such as PTSD. Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2009)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The evidence as described below reveals GAF scores of 50 and 65. A GAF score ranging from 61-70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning well, with some meaningful interpersonal relationships. The Board notes that a GAF score of 51-60 indicates 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 peer or coworkers). A score of 41-50 indicates 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). DSM-IV at 47. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). For the period prior to June 26, 2008 On October 2001 medical prescreen of medical history and report of medical history, the Veteran denied drug or alcohol rehab and any nervous trouble. Service treatment records show no evidence of diagnosis of, or treatment for, PTSD, during service. However, following a charge of drunk and disorderly conduct in July 2003, the Veteran was evaluated and treated for alcohol dependence, with physiological dependence, between August 19, 2003 and September 22, 2003, when he was released to routine military duties. During May 2004, he participated in the Substance Rehabilitation Program at Camp LeJeune. The discharge diagnosis was alcohol dependence. On an August 2004 pre- deployment health assessment, the Veteran denied seeking counseling or care for his mental health during the past year. On an April 2005 post-deployment health assessment, the Veteran denied any PTSD symptomatology. On an October 2005 dental health questionnaire, the Veteran denied alcoholism and drug addiction. A December 2005 VA psychiatric examination reflects that the Veteran recently was discharged from the Marine Corps on December 3, 2005 and was currently trying to readjust to civilian life, attempting to look for a job, and to get back into "normal" life. However, he had been experiencing frequent nightmares and cold sweats, which involved various firefights, fear of being captured by the enemy, grenades being thrown at him, and other combat-related experiences, including incidents where his buddies are being blown up in battle and car bombs. The Veteran also had nightmares about car bombs and mortars, which occurred during his day-to-day life in Iraq. He had exaggerated startle reflex at sudden and loud noises and notices that he was initially "more temperamental" and was attempting to be more even-tempered and trying to readjust to his current life. The Veteran was posted in Iraq from September 17, 2004 to April 15, 2005 and was involved in various guerilla combat zones as well as being posted at the Abu Ghraib Prison. The Veteran described an incident in April 2005, when he was posted at the prison, which was later bombed by mortars by insurgent snipers and he himself was wounded by shrapnel from an RPG warhead in his back and also sustained a severe ankle injury. He reported that he frequently stayed up all night and only slept a few hours during the day. He has also noticed a decrease in his energy level because of his physical injuries that led to some degree of physical limitation. The Veteran drank alcohol on weekends consuming about a 24-pack of beer as well as a few shots of hard liquor. He admitted to receiving a DUI when he was 28 years old. On mental status examination, the Veteran was casually and appropriately dressed, well groomed, calm, cooperative and verbal with good eye contact during the interview. He was oriented to person, place and time. Speech was of moderate rate, pitch and volume with good clarity. Affect was constricted but appropriate to the ideation and the situation; mood was neutral. The Veteran was coherent, relevant, and goal-directed. He denied suicidal or homicidal ideation but did express some degree of frustration with his ongoing problems. The Veteran denied auditory or visual hallucinations but admitted to experiencing frequent nightmares. Sensorium was clear. He had good concentration and attention span. Memory was good; judgment and insight were fair. He had a fair fund of knowledge and could solve simple mathematical problems and was fairly abstract in his thinking. PTSD was diagnosed. He was assigned a GAF score of 65. In light of the above, the Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent, prior to June 26, 2008, as it fails to show that Veteran's PTSD was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. During this period, the Veteran was receiving no treatment or medication for his PTSD symptoms. The only medical evidence of record is that from the December 2005 VA examination report. On examination, the Veteran was casually and appropriately dressed, well groomed, calm, cooperative and verbal with good eye contact during the interview. He was oriented to person, place and time. Speech was of moderate rate, pitch and volume with good clarity. Affect was constricted but appropriate to the ideation and the situation; mood was neutral. The Veteran was coherent, relevant, and goal-directed. He denied suicidal or homicidal ideation but did express some degree of frustration with his ongoing problems. The Veteran denied auditory or visual hallucinations but admitted to experiencing frequent nightmares. Sensorium was clear. He had good concentration and attention span. Memory was good; judgment and insight were fair. He had a fair fund of knowledge and could solve simple mathematical problems and was fairly abstract in his thinking. As a result, the examiner diagnosed the Veteran with PTSD and assigned a GAF score of 65. A GAF score of 65 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning well, with some meaningful interpersonal relationships. The Board acknowledges that, during his hearing testimony, the Veteran alleged that his symptoms had worsened over the previous two-year period; however, without medical evidence of such increased symptomatology, the Board finds a higher initial rating for PTSD is not warranted. For the period from June 26, 2008 to January 14, 2010 A June 26, 2008 VA psychology general note reflects the Veteran's report of intrusive recollection of reported traumatic memory on a daily basis without dissociative features. He identified triggers of memorabilia from service, as well as loud noises, and endorsed symptoms consistent with physiological and psychological reactivity upon exposure to external cues that resemble memories of trauma. The Veteran reported nightmares of traumatic memories or trauma-related themes two to four times per week, active avoidance of thoughts, feelings and conversations about memories of trauma via distraction and excessive use of alcohol for self medication, and a loss of interest and participation in activities such as billiards and socializing with increasing detachment and estrangement in his relationships, as well as restriction in affect. He avoided activities and people that might arouse recollections of trauma particularly friends and increasing social isolation. The Veteran denied symptoms consistent with a sense of foreshortened future. He sleeps about 5 hours per day, having difficulty falling and staying asleep and broken up by nightmares. He complained of persistent irritability with anger outbursts occurring about two times per month. He described these outbursts as primarily verbal without physical acting out towards others. The Veteran indicated that he had impaired concentration described as racing thoughts on memories of trauma, as well as situational stressors, and that he was hypervigilant and had exaggerated startle response. He had depressive symptoms without associated suicidal ideation and mild anhedonia and malaise. The Veteran denied past suicide or homicide attempts. He had had a recent DUI with license suspension, stating that he drank about two cases of beer per weekend and that his alcohol use recently had increased significantly. He admitted to use of marijuana about three times per week, since his return from deployment. On examination, the Veteran displayed a mildly anxious mood with restricted affect. He denied, and did not demonstrate, symptoms consistent with current suicidal or homicidal ideation or auditory or visual hallucinations. His insight seemed fair with good judgment. His speech was logical, coherent and sequential. The diagnosis was PTSD. On July 3, 2008, the Veteran was admitted to the VA addiction consultation/liaison program. Upon admission, he indicated that his usual employment pattern had been full time in the past three years, but he had worked less than two weeks during the past 30 days. The Veteran reported a 21-year history of alcohol and marijuana use, 11 years using alcohol to intoxication, indicating two treatments for alcohol and drug abuse while in the Marine Corps, with no substantial clean time. He reported serious depression, anxiety or tension and trouble understanding, concentrating or remembering. He denied having been prescribed medication for psychological or emotional problems, but indicated that he used alcohol to mask PTSD symptoms. A July 2008 VA fee-basis neuropsychological examination report dated in September 2008 reflects that the Veteran sustained a blast injury in April 2005, but he was never diagnosed, nor treated for a traumatic brain injury (TBI) as there was no loss of consciousness, headache, nausea, or vomiting. He had been employed in landscaping for the past few months, prior to that, he did "odd Jobs" including painting and roofing. His goal was to possibly return to school and major in forestry. Although his parents are divorced and live nearby, he rarely talked with his mother or his three sisters. On examination, the Veteran presented in a generally pleasant and cooperative fashion and in no acute distress. His dress was casual while grooming and hygiene were unremarkable. Eye contact varied. Speech was intelligible and there was no evidence of aphasia or dysarthria. A mild degree of hesitancy was noted. Behaviorally, he reported anxiety, depression and paranoia. He indicated that the above noted symptoms had gradually worsened over the past year. He denied neurocognitive alternations. His mood was depressed and anxious with elements of PTSD. Thought processes were coherent but somewhat tangential. There was no evidence of a formal thought disorder or psychosis, although he did report hypervigilance and mild paranoia. No unusual perceptions were noted. The examiner indicated that the test results might in fact represent some degree of symptom exaggeration. Neuropsychological testing showed that the Veteran functioned within the average range of general intelligence; however, attention/concentration, recent/delayed verbal and visual memory, verbal fluency, sensory perception, and executive functions were below anticipated levels. He demonstrated significant and diffuse memory problems and was unable to process, consolidate, and retrieve information presented through verbal/auditory or visual channels, in contrast with the Veteran's denial of neurocognitive deficits. In all likelihood, the examiner indicated the Veteran's scores, in conjunction with other "unusual" scores reflect performance inconsistencies mediated by behaviors (that is, inattention and marginal effort). Behaviorally, the Veteran presented with ongoing adjustment difficulties, including depression, anxiety and mild over- suspiciousness. He reported numerous symptoms consistent with PTSD, including hypervigilance, intrusive thoughts, nightmares, and flashbacks, indicating that these problems had gradually worsened over the past one to two years. The examiner added that these behaviors and associated adjustment difficulties might also reflect, to a large degree, chronic and persistent alcohol abuse/dependence. Reportedly, the Veteran received a second DUI in September 2007, at which time his driver's license was suspended. Undoubtedly, this had been frustrating for him with regard to maintaining gainful employment, attending school, and basically living a "normal" lifestyle. The Veteran reported neurovegetative depressive symptoms including insomnia with associated fatigue, dysphoria, occasional crying, and reduced interest. He denied suicidal ideation/intent. In part, this coincides with formal personality assessment showing a severe range of depressive symptomatology on the Beck Depression Inventory but his MMPI-2 profile was invalid based on an elevated F scale. Thus, the Veteran's significantly elevated profile appeared clinically uninterpretable. In summary, the examiner noted that the findings represented a blend of etiologies including ongoing adjustment difficulties, such as depression and PTSD, possible adverse effects from chronic alcohol abuse/dependence, varying degrees of effort/motivation, and premorbid personality/intellectual variables. At a functional level, the Veteran remained independent in all activities of daily living. Specifically, he was able to reside independently, maintain full-time gainful employment as a landscaper, manage daily and monthly finances, and socialize with family and friends. The diagnostic impression included PTSD, by history; a possible mild post-concussion following an April 2005 blast injury, by history; and alcohol abuse/dependence. A July 29, 2008 VA psychiatry general note reflects the Veteran's complaints of depression, anxiety and mood swings. He reported flashbacks and nightmares 4 to 5 times per week. The Veteran denied suicidal/homicidal thoughts, plan, or intent. He reported sleeping poorly secondary to mind racing, about 6 hours or less, poor appetite, eating about once a day, and feeling anxious or paranoid in unfamiliar settings or around large groups of people. The Veteran denied alcohol or drug abuse, but admitted to drinking over a case of beer each night from Thursday to Sunday and smoking marijuana two to three times a week. He self isolated and avoided past pleasurable activities that included large groups of people. The Veteran had worked as a landscaper for at least one year and reported living with two of his friends. His parents and a sister lived in the area. He reported a good relationship with his father and sister, but did not speak to his mother. On examination, he was fairly well groomed, appropriately dressed, and alert and oriented to time, person and place. The Veteran was cooperative, calm and pleasant. Mood was described as "swinging back and forth." Affect was guarded. There was no psychomotor agitation or retardation. Speech was spontaneous, relevant, and coherent. Thought processes were organized and logical. The Veteran verbalized no auditory or visual hallucinations or delusional thoughts. He denied suicidal and homicidal ideation. Memory, both recent and remote, was intact. Insight was poor; judgment was fair. The assessment included PTSD, mood disorder, not otherwise specified (NOS), and polysubstance abuse. He was prescribed Geodon. At a September 29, 2008 VA psychiatric follow-up, the Veteran reported feeling considerably slowed down with Geodon and having a hard time functioning. He still was not sleeping well. He complained of depressed mood most of the day for more than two weeks, constant fatigue or loss of energy, out of the blue anxiety, recurrent, persistent unwanted thoughts, impulses and flashbacks, easy to startle, feelings of detachment from others, avoidance of social activities, angry feelings or dreams, feelings of guilt or shame, perception of the world as being dangerous or people untrustworthy, difficulties getting started in the morning, interpersonal difficulties with immediate family, and markedly diminished interest or pleasure. On examination, he was fairly well groomed, appropriately dressed, and alert and oriented to time, person and place. The Veteran was cooperative, calm and pleasant. Mood was described as "okay." Affect was calm. There was no psychomotor agitation or retardation. Speech was spontaneous, relevant, and coherent. Thought processes were organized and logical. The Veteran verbalized no auditory or visual hallucinations or delusional thoughts. He denied suicidal and homicidal ideation. Memory, both recent and remote, was intact. Insight was fair; judgment was intact. The assessment included PTSD, mood disorder, NOS, and polysubstance abuse. The Geodon was to be decreased and Wellbutrin begun. At a March 5, 2009 VA psychiatric follow-up, the Veteran reported that he felt "about the same." He still felt that he did not have a lot of energy even with the decrease in Geodon and the addition of Wellbutrin. Sleeping was still an issue, having problems falling and staying asleep. He stated that racing thoughts caused trouble with falling asleep and that he averaged two to three hours of good sleep. The Veteran complained of constant fatigue and loss of energy, inattention, out of the blue anxiety, recurrent, persistent unwanted thoughts, impulses and flashbacks, easy to startle, non-restorative sleep, avoidance of social activities, angry feelings or dreams, feelings of guilt or shame, and alcohol or other substance use resulting in work, social, financial, legal or physical consequences (reducing his drinking to a case of beer twice a week). On examination, he was fairly well groomed, appropriately dressed, and alert and oriented to time, person and place. The Veteran was cooperative, calm and pleasant. Mood was described as "relaxed." Affect was consistent with mood. There was no psychomotor agitation or retardation. Speech was spontaneous, relevant, and coherent. Thought processes were organized and logical. The Veteran verbalized no auditory or visual hallucinations or delusional thoughts. He denied suicidal and homicidal ideation. Memory, both recent and remote, was intact. Insight was fair; judgment was intact. The assessment included PTSD, mood disorder, NOS, and polysubstance abuse. Geodon was discontinued and Trazodone and Wellbutrin were increased. In light of the above, and resolving all doubt in the Veteran's favor, the Board finds that from June 26, 2008 through January 14, 2010, the Veteran's PTSD approximated a 30 percent rating, and no more. During this time period, the Veteran's PTSD generally was manifested by nightmares, intrusive thoughts, hypervigilance, startle reaction, irritability, some short-term memory loss, depressed mood, some difficulty maintaining relationships with family members (mother and sisters) and co-workers, and loss of interest in familiar activities. There was no evidence of panic attacks more than once a week; difficulty understanding complex commands; flattened affect; circumstantial, circumlocutory; or stereotyped speech so as to warrant a 50 percent rating. There also was no evidence of impaired impulse control; obsessional rituals; neglect of personal appearance and hygiene; disorientation to time or place; total occupational and social impairment; hallucinations, delusions, suicidal or homicidal ideations; or communication or thought process deficits to warrant a higher rating. From January 15, 2010 A January 15, 2010 VA PTSD examination report reveals that the Veteran has had no psychiatric hospitalization, has had two DUIs, and admits to using marijuana. Since May 2009, the Veteran has had a part-time job encompassing home decorations, residential indoor painting, and installation of appliances. He has had repeated difficulties maintaining a job, having at least 9 jobs in different places after his discharge from the Marine Corps. At the Tobyhanna Army Depot, the Veteran had difficulties relating to coworkers, one of which did not like the military at all who he avoided. He was exhausted due to lack of sleep, calling off from work numerous times or not showing up for work. A lot of the civilian employees asked him questions about Iraq, which put him in a corner, upsetting him. He either quit or was terminated from that job after 2 1/2 months. The Veteran tried to go to work in a residential house painting outfit, but he could not get along with the employer, claiming that he was constantly being watched with someone behind his shoulder telling him what to do, which he disliked very much. He tried factory work with CCL Tube, but the Veteran could not tolerate the in-house work, for there was "no atmosphere" and the work was rather monotonous. He then did landscaping and could not get along with one of his coworkers, with whom the Veteran had some conflict in personality that he actually had violent aggressive fantasies against that worker. So the Veteran quit that job. He worked in an irrigation system company doing lawns and gardens for one season, but the company downsized, and he lost his job. Then he returned to landscaping, on and off, around 2008. However, he gave up that job, for money was not coming in well as the working hours were unreliable. He also tried working in construction, like installing house decks and putting in floors, but had to quit that job as well. Dating proved problematic because the Veteran chose women who were actually married or who were not affectionate. The Veteran indicated that he has some element of suspiciousness, perceiving that his friends are out to get him or do away with him. He feels that he is being watched all the time and being asked about Iraq as well. The Veteran planned to move to New York City to be with his brother, who would be a good influence on him as he does not drink alcohol, and there is public transportation available. The Veteran stated that he avoided his mother at all costs, does not get along with two of his three sisters, and, although he has some relationship with his father, he does not want to be tied down to taking care of his father who has a back problem. He dropped a number of interests/activities that he use to like due not only because of his emotional state but also due to combat injuries to his lower back and left ankle, selling his mountain bike and drum set. Because he is afraid of heights, associated with the in-service RPG attack and explosion at Abu Gharib, he gave up hiking. The Veteran has a bleak outlook of the future, indicating that he cannot do things right or efficiently or as fast as he used to in the past. He has some element of hopelessness. He felt like he needed to go back into psychiatric or psychological counseling in a different location, not Pennsylvania. Although a high school graduate, he has no ambitions of going to college for fear of failure. The Veteran complained of erratic sleep, never sleeping through the night, sleeping half an hour to an hour and a half at a time, waking up intermittently. He has intermittent nightmares, waking up in cold sweats. While asleep, he wakes up startled periodically, feeling butterflies in his stomach, puffing out of breath, having limited symptoms, panic-like attacks. Current events of the war in Iraq intensify the severity and frequency of disturbing recollections. When he hears fireworks, he flinches and, in an instance, it immediately and spontaneously reminds him of bombs going off. The Veteran reported hyperarousal symptoms, short attention span, problems concentrating, memory problems (losing his keys, wallet or cell phone or overdrafting his checkbook). He denied seeing visions. On examination, the Veteran was casually dressed, alert and oriented in person, place and time. Personal hygiene was good. He was moderately to severely tense, uptight, and fidgety. His mood was moderately to severely nervous and mildly depressed; affect was mood congruent. He was quite talkative with pressured speech and some element of irritability. He had nightmares as well as intrusive thoughts about Iraq events, panic attacks, a hyperstartle response, hearing occasional voices telling him to "kill." He feels suspicious and paranoid, most especially around civilians, including his friends. The Veteran tended to avoid or isolate himself from others and had problems showing affection. He has feelings of hopelessness. He has never been suicidal. Short-term memory was intact; long-term memory was adequate. Concentration was impaired, making at least 3 errors in serial 7s. His judgment and insight were both fair-to-poor. In spite of exacerbating symptomatology related to PTSD, the Veteran had dropped out of formal psychiatric treatment in March 2009, which might have some bearing on his insight and judgment. The diagnosis was chronic PTSD that, with its accompanying symptomatologies and difficulties has rendered and caused substantial, severe difficulty in functioning and maintaining employment, established and maintaining relationships with others, and pursuing activities of interest. The examiner added that the Veteran's alcohol dependence is a self-medication due to the emotional distress related to PTSD. A GAF score of 50 was assigned. Five days later, at a January 2010 VA psychiatric follow-up, the Veteran was alert and oriented to person, place and time. He complained of not sleeping and eating well. He reported some disorganized thinking and using alcohol a lot. The Veteran denied suicidal and homicidal ideation. His mood was good; affect was bright. Intelligence and memory were intact. Insight and judgment were fair. There was no evidence of psychotic features. His speech was coherent. The Veteran was spending time between Pennsylvania and New York City, where his brother was a job foreman, missing some medications due to traveling back and forth. In light of the above, the Board finds that the preponderance of the evidence is against a rating in excess of 70 percent, from January 15, 2010. The evidence fails to show that Veteran's PTSD was manifested by total occupational and social impairment with deficiencies in most areas due to such symptoms as: suicidal or homicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-continuous pain or depression affecting ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene to warrant a higher rating. As the preponderance of the evidence is against the Veteran's claims for a higher initial rating for his left ankle disability and for rating in excess of 10 percent, prior to June 26, 2008, for PTSD and in excess of 70 percent for PTSD with alcohol dependence, from January 15, 2010, the "benefit of the doubt" rule is not for application, and the Board must deny these claims. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Other Considerations The Board finds that there is no basis for referral for consideration of an extraschedular rating in this case. 38 C.F.R. § 3.321(b)(1). The effects of his left ankle disability and his PTSD with alcohol dependence on employment are already considered in the assignment of the current ratings. Moreover, the Veteran has never been hospitalized because of either his left ankle or his PTSD, so as to otherwise render impractical the application of the regular schedular standards. The Veteran does not allege that either disability renders him unemployable, which would suggest that the Veteran is not adequately compensated by the regular schedular standards. The Veteran currently works in New York doing painting and construction. In the absence of evidence of such factors, the Board is not required to remand the claims to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 337 (1996). Accordingly, referral for extraschedular consideration or for consideration of a total rating based on individual unemployability (TDIU) is not warranted at this time. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating in excess of 20 percent for a left ankle sprain with traumatic calcification is denied. Prior to June 26, 2008, an initial rating in excess of 10 percent for PTSD is denied. From June 26, 2008 through January 14, 2010, a rating in excess of 30 percent for PTSD with alcohol dependence is granted, subject to the law and regulations governing the payment of monetary benefits. From January 15, 2010, a rating in excess of 70 percent for PTSD with alcohol dependence is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs