Citation Nr: 0811001	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  05-28 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, 
New Hampshire


THE ISSUE

Entitlement to an evaluation in excess of 30 percent 
disabling for post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Jennifer R. White, Law Clerk




INTRODUCTION

The veteran served on active duty from February 1952 to 
February 1955. 
 
This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a January 2005 decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Manchester, New 
Hampshire. 

In September 2005, the veteran testified at a hearing before 
a Decision Review Officer at the Manchester RO.  A transcript 
of this hearing is of record.


FINDINGS OF FACT

The veteran's service-connected post-traumatic stress 
disorder is currently manifested by moderate symptoms, 
including anxiety, irritability and sleep disruption, but 
with relevant, coherent, and productive speech, good social 
relationships, good judgment and insight, good impulse 
control, good memory, no panic attacks, and no suicidal or 
homicidal ideation.  


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for PTSD 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & 
West Supp 2007); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 
9411 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002)) redefined VA's duty to assist a claimant in the 
development of a claim.  VA regulations for the 
implementation of the VCAA were codified as amended at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).

The notice requirements of the VCAA require VA to notify the 
veteran of what information or evidence is necessary to 
substantiate the claim; what subset of the necessary 
information or evidence, if any, the claimant is to provide; 
what subset of the necessary information or evidence, if any, 
the VA will attempt to obtain; and a general notification 
that the claimant may submit any other evidence he has in his 
possession that may be relevant to the claim.  Sanders v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  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.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  Additionally, the claimant 
must be notified that, should an increase in disability be 
found, a disability rating will be determined by applying 
relevant Diagnostic Codes, which typically provide for a 
range in severity of a particular disability from 
noncompensable to as much as 100 percent (depending on the 
disability involved), based on the nature of the symptoms of 
the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life.  The notice must also provide 
examples of the types of medical and lay evidence that the 
claimant may submit (or ask the Secretary to obtain) that are 
relevant to establishing entitlement to increased 
compensation-e.g., competent lay statements describing 
symptoms, medical and hospitalization records, medical 
statements, employer statements, job application rejections, 
and any other evidence showing an increase in the disability 
or exceptional circumstances relating to the disability.  Id. 

VCAA notice must be provided to a claimant before the initial 
unfavorable decision on a claim for VA benefits by the agency 
of original jurisdiction (in this case, the RO).  Id; see 
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  
However, insufficiency in the timing or content of VCAA 
notice is harmless if the errors are not prejudicial to the 
claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 
2004) (VCAA notice errors are reviewed under a prejudicial 
error rule); see also Sanders v. Nicholson, 487 F.3d 881 
(Fed. Cir. 2007).

In this case, in a November 2004 letter, issued prior to the 
decision on appeal, the RO provided notice to the veteran 
regarding what information and evidence is needed to 
substantiate a claim for an increased rating, as well as what 
information and evidence must be submitted by the veteran, 
what information and evidence will be obtained by VA, and the 
need for the veteran to submit any evidence he has in his 
possession that pertains to the claim.  This letter advised 
the veteran to submit or ask VA to obtain medical evidence 
detailing clinical findings, to submit lay statements from 
witnesses describing his symptoms, and/or to submit his own 
statement completely describing his symptoms, their frequency 
and severity, and any additional disablement his condition 
causes.  The veteran responded to the notice that all 
treatment is rendered at the VA medical center.  

The record also reflects that VA has made reasonable efforts 
to obtain relevant records adequately identified by the 
veteran.  Specifically, the information and evidence that 
have been associated with the claims file includes the 
veteran's service treatment records, VA treatment records, VA 
examination reports, and hearing testimony.  

The Board notes the November 2004 notice letter does not 
appear to fully comply with the Court's holding in Vazquez.  
However, any such insufficiency in the notice is not 
prejudicial to the veteran.  In this regard, the veteran 
reported during his VA examination and his personal hearing 
that he does not receive any treatment for his PTSD.  
Moreover, the veteran provided personal testimony of the 
impact of his disability on his daily functioning, and also 
provided such information to the VA examiner.  Further, he 
was provided with the applicable rating schedule criteria in 
the August 2005 statement of the case.  The case was 
thereafter readjudicated in December 2005.  

There is no indication that there are additional relevant 
records to obtain and there is no additional notice that 
would aid in substantiating the claim, as he receives no 
treatment, VA conducted an examination, he provided his 
personal statements addressing his symptoms and their impact 
on his functioning at a hearing, and he was advised he could 
submit lay statements to support his claim.  Moreover, as the 
Board concludes below that the preponderance of the evidence 
is against the claims, any question as to an appropriate 
disability rating or effective date to be assigned is 
rendered moot.  Any error in the sequence of events or 
content of the notice is not shown to have affected the 
essential fairness of the adjudication or to cause injury to 
the veteran.  See Sanders, 487 F.3d 881; see also Vasquez-
Flores v. Peake, 22 Vet. App. 37 (2008).  Thus, any such 
error is harmless and does not prohibit consideration of 
these matters on the merits.  See Conway, 353 F.3d at 1374, 
Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, 
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule) and are intended to represent the average 
impairment of earning capacity resulting from disability.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007).  
Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1.  Other applicable, general policy 
considerations are: interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating 
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2 (2007); resolving any reasonable doubt regarding the 
degree of disability in favor of the claimant, 38 C.F.R. 
§ 4.3 (2007); where there is a question as to which of two 
evaluations apply, assigning a higher of the two where the 
disability picture more nearly approximates the criteria for 
the next higher rating, 38 C.F.R. § 4.7 (2007); and, 
evaluating functional impairment on the basis of lack of 
usefulness, and the effects of the disabilities upon the 
person's ordinary activity, 38 C.F.R. § 4.10 (2007).  See 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In general, the degree of impairment resulting from a 
disability is a factual determination and generally the 
Board's primary focus in such cases is upon the current 
severity of the disability.  Francisco v. Brown, 7 Vet. 
App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 
(1994).  Nevertheless, the Board acknowledges that a claimant 
may experience multiple distinct degrees of disability that 
might result in different levels of compensation from the 
time the increased rating claim was filed until a final 
decision is made.  Hart v. Mansfield, 21 Vet. App. 505 
(2007).  The analysis in the following decision is therefore 
undertaken with consideration of the possibility that 
different ratings may be warranted for different time 
periods.  

The veteran's PTSD is currently rated under Diagnostic Code 
9411.  38 C.F.R. 
§ 4.130.  Under this Code a 30 percent rating is warranted 
for PTSD where 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 conversion 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).  
38 C.F.R. § 4.130, Diagnostic Code 9411. 

A 50 percent evaluation is to be assigned 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.  Id. 
 
A 70 percent disability 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 work like 
setting); inability to establish and maintain effective 
relationships.  Id. 
 
A 100 percent disability evaluation is warranted where the 
evidence shows 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; inability to perform activities of daily 
living (including maintenance of minimal personal hygiene); 
disorientation to time or place; memory loss for names of 
close relatives, own occupation, or own name.  Id. 
 
When evaluating the level of disability from a mental 
disorder, the rating agency will consider the extent of 
social impairment, but shall not assign an evaluation solely 
on the basis of social impairment.  38 C.F.R. § 4.126.  

One factor for consideration is the Global Assessment of 
Functioning (GAF) score, which is a scale reflecting the 
"psychological, social, and occupational functioning in a 
hypothetical continuum of mental health-illness."  Carpenter 
v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition (DSM- 
IV)).  Scores ranging from 51 to 60 reflect moderate symptoms 
(e.g., flat affect and circumstantial speech, occasional 
panic attacks) or moderate difficulty in social, 
occupational, or school functioning (e.g., few friends, 
conflicts with peers or co- workers).  Scores ranging from 41 
to 50 reflect serious symptoms (e.g., suicidal ideation, 
severe obsessional rituals, frequent shoplifting) or any 
serious impairment in social, occupational or school 
functioning (e.g., no friends, unable to keep a job).  Scores 
ranging from 31 to 40 reflect some impairment in reality 
testing or communication (e.g., speech is at times illogical, 
obscure, or irrelevant) or major impairment in several areas, 
such as work or school, family relations, judgment, thinking, 
or mood (e.g., depressed man avoids friends, neglects family, 
and is unable to work).  

The Board has reviewed all the evidence in the veteran's 
claims file.  Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there is 
no requirement that the evidence submitted by the veteran or 
obtained on his behalf be discussed in detail.  Rather, the 
Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).

Turning to the evidence, the veteran was afforded a VA 
examination during December 2004.  The examiner indicated 
that the veteran was not in any psychiatric treatment and 
took no psychiatric medications.  The veteran indicated he 
had been married for fifty years and his relationship with 
his wife was wonderful.  The veteran described his 
relationship with his grown daughter as fine and his 
relationship with his grandchild as super.  The veteran's 
hobbies included playing cribbage with his brothers and 
playing golf.  The veteran indicated that he had friends and 
family with whom he socialized and had good relationships 
with.  The examiner described the veteran as having a tense 
and anxious mood with hesitant speech and constricted affect.  
The examiner stated there was no evidence of 
depersonalization but there was evidence of derealization.  
Additionally, there was no indication of hallucinations or 
illusions; the veteran's thought processes were logical and 
directed with no preoccupations or obsessions and no 
delusions.  The veteran indicated he had no suicidal or 
homicidal ideations.  The veteran was oriented times three; 
attention and concentration were commensurate with age; 
memory was within normal limits; and the ability for 
insightful and abstract thinking as well as judgment were 
within normal limits.  The veteran complained that he had 
terrible sleep quality and that he woke up often at night.  
The examiner indicated the veteran had no problems with his 
temper.  The veteran indicated he thinks three to four times 
a week about his traumatic experiences in Korea.  The 
examiner indicated that the veteran's symptoms were in the 
moderate range and gave him a GAF score of 60.

The veteran was afforded a formal RO hearing in September 
2005.  The veteran indicated he had no psychiatric treatment 
and took no psychiatric medications.  The veteran indicated 
he played golf as a hobby with four guys he had played with 
for many years.  The veteran indicated he sometimes had to 
apologize to his wife of 51 years for his irritability.  The 
veteran stated that he socialized in a small group with one 
or more other couples.  The veteran indicated that he had 
problems sleeping and he did not care to watch TV coverage 
concerning the war in Iraq or Hurricane Katrina because he 
felt bad for those people.       

There is no evidence the veteran manifests any of the 
symptoms contemplated in the 50 percent disability rating.  
The veteran does not have a flat affect; circumstantial, 
circumlocutory, or stereotyped speech; panic attacks; 
difficulty in understanding complex commands; memory 
impairment; impaired judgment; impaired abstract thinking; 
disturbances of motivation and mood; or difficulty in 
establishing and maintaining effective work and social 
relationships.  Further, the veteran's anxiety and chronic 
sleep impairment are contemplated in the 30 percent 
disability rating.

For the reasons set forth above, the Board finds that the 
veteran's disability picture does not reflect symptomatology 
which more nearly approximates the criteria for a 50 percent 
rating. 

In reaching the conclusion above the Board has considered the 
applicability of the benefit of the doubt doctrine.  However, 
as the preponderance of the evidence is against the veteran's 
claim, that doctrine is not applicable in the instant appeal.  
See 38 U.S.C.A. § 5107(b) (West 2002);  Ortiz v. Principi, 
274 F.3d 1361, 1364 (Fed. Cir. 2001);  Gilbert v. Derwinski, 
1 Vet. App. 49, 55-57 (1990).   

Finally, the Board finds no evidence that the veteran's PTSD 
presents such an unusual or exceptional disability picture so 
as to require consideration of an extraschedular evaluation 
pursuant to the provisions of 38 C.F.R. § 3.321(b).  The 
veteran has not been hospitalized for psychiatric problems 
and he is retired from full time work.  Moreover, the VA 
examiner noted only moderate impairment, thus, marked 
interference with employment is not shown.  The evaluation 
assigned adequately reflects the extent of his impairment, 
and referral of this case for consideration of an 
extraschedular rating is not warranted.  See Floyd v. Brown, 
8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 
338-339 (1996).


ORDER

Entitlement to an evaluation in excess of 30 percent for 
post-traumatic stress disorder (PTSD) is denied.



____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs