Citation Nr: 0811074 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 03-04 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating higher than 50 percent for post-traumatic stress disorder (PTSD) prior to September 10, 2004. 2. Entitlement to a disability rating higher than 70 percent for the PTSD since September 10, 2004. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from October 1965 to October 1967 and from January 1970 to January 1988. This appeal to the Board of Veterans' Appeals (Board) is from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the veteran's claim for an increased rating for his PTSD. At the time, he had a 50 percent rating for this condition. In January and November 2006, the Board remanded this case for further development - including to provide the veteran additional notice and assistance to comply with the Veterans Claims Assistance Act (VCAA). He also had a VA examination to assess the severity of his PTSD. An October 2007 decision, on remand, increased the rating for the PTSD from 50 to 70 percent retroactively effective as of September 10, 2004. The veteran has since continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). So the issues are whether he was entitled to a rating higher than 50 percent for his PTSD prior to September 10, 2004, and whether he has been entitled to a rating higher than 70 percent since that date. FINDINGS OF FACT 1. Prior to September 10, 2004, the veteran's PTSD symptoms did not cause occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood. 2. Since September 10, 2004, the veteran's PTSD symptoms have not caused total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to September 10, 2004, the criteria were not met for a rating higher than 50 percent for the PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code (DC) 9411 (2007). 2. Since September 10, 2004, the criteria have not been met for a rating higher than 70 percent for the PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, DC 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims files reveals compliance with the VCAA, 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in January 2006, the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO did not issue a VCAA notice letter prior to initially adjudicating the veteran's claim - the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). But, as mentioned, the Board remanded this case in January and November 2006 so he could receive the required VCAA notice. And the January 2006 VCAA letter was sent prior to the June 2006 and October 2006 supplemental statements of the case (SSOCs) - wherein the RO readjudicated his claim based on any additional evidence that had been received since the initial rating decision, statement of the case (SOC), and any prior SSOC. The Federal Circuit Court has recently held that a SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. Sept. 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Moreover, neither the veteran nor his representative has made any showing or allegation that the timing of the VCAA notice resulted in any prejudice to the veteran. But see Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) (where the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any element of a claim, is presumed prejudicial and that once an error is identified, the burden shifts to VA to show it was harmless). The January 2006 letter did make the specific request that the veteran submit any evidence pertaining to his claim and, in any event, VA's Office of General Counsel has indicated requiring VA include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and, therefore, not binding on VA. See Pelegrini II; VAOPGCPREC 1-2004 (Feb. 24, 2004) (OGC discussed this in response to the holding in Pelegrini v. Principi, 17 Vet. App. 183 (2002) (Pelegrini I), but the Court used basically the same language in Pelegrini II, so it is equally applicable). The Board is bound by the precedent opinions of VA's General Counsel, as the Chief Legal Officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). 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, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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. Vazquez-Flores, slip op. at 5-6. Here, because the Vasquez-Flores' decision was not issued until very recently, the veteran has not received VCAA notice specifically tailored to comply with it. And, as mentioned, in Sanders and Simmons the Federal Circuit Court held that this type of notice error is presumed prejudicial and that it is incumbent upon VA, not the veteran, to show why the error is nonprejudicial, i.e., harmless. VA can show the error is harmless by demonstrating why it does not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05- 0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the diagnostic criteria used to determine the relative severity of the PTSD were provided to the veteran in the September 2003 SOC. A reasonable person could be expected to read and understand these criteria, and that evidence to show his disability met the requirements for a higher rating was needed for an increase to be granted. Also keep in mind his claim was readjudicated twice, in June 2006 and October 2007, after additional evidence was received. Indeed, in the October 2007 decision, the RO increased his rating. So, as already alluded to, those readjudications effectively "cured" the inadequate notice or lack of notice prior to the initial adjudication of his claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). If there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). That is to say, if there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to the veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. Consider, as well, that in the June 2006 SSOC and in an August 2006 letter the veteran was informed of the disability rating and downstream effective date elements of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). With respect to the duty to assist, the RO obtained the veteran's service medical records, service personnel records, VA medical records, private medical records, and the reports of his VA compensation examinations. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board is also satisfied as to compliance with its January and November 2006 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Evaluation Claims Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2006). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent Court decision held that, in determining the present level of a disability for any increased-evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In this case, a staged rating was applied by the RO when it increased the veteran's evaluation for his PTSD from 50 to 70 percent in October 2007 - retroactively effective as of September 10, 2004. Thus, the questions now at issue are whether the veteran was entitled to a rating higher than 50 percent prior to September 10, 2004, and whether he has been entitled to a rating higher than 70 percent since. In making these determinations, if two evaluations are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The severity of the veteran's PTSD is determined by DC 9411. The diagnostic criteria, including those related to stressors set forth in The American Psychiatric Association: Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM-IV) for mental disorders have been adopted by VA. 38 C.F.R. § 4.125. According to the DSM-IV criteria, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The next higher rating of 70 percent is warranted when there is occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to symptoms such as: suicidal ideation, obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In assessing the evidence of record, the Board has considered the veteran's Global Assessment of Functioning (GAF) scores. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). According to the DSM-IV, a GAF score of 41-50 indicates serious symptoms or serious impairment in social, occupational, or school functioning. Whereas a GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Entitlement to a Disability Evaluation Greater than 70 Percent Since September 10, 2004 In April 2007, to comply with the Board's remand directive, the veteran had a VA examination to determine the current severity of his PTSD. The designated examiner spent two and a half hours reading the veteran's claims folders after the examination to ensure that all documentation was reviewed. The examiner noted that the veteran was a difficult historian and observed that his record showed inconsistencies in his reported histories over the years. The veteran stated that he took several medications including mirtazapine, buspirone, bupropion, Seroquel, and trazdone. At the interview, he reported anger and irritability, especially at work. Two co- workers, in particular, made him very angry. He had problems with interpersonal relationships at work because when he was angry at one person, other people observed his anger and thought he was angry with everyone. He reported memory problems, including forgetting the names of family members when talking with them at home. He reported a history of auditory hallucinations, which had resolved one year prior to the examination. When asked about suicidal ideation, he said he constantly thought about how people would react if he walked in front of a moving car. He also stated that if someone walked in front of his car while he was driving, he thought he would run over them. He complained of insomnia, and that his wife slept on the couch some nights because he fought in his sleep. The veteran has been married to his second wife for 28 years, but reportedly has little interaction with her. He used work as a way to avoid her. He stated that his wife wrote the checks for all their bills because he would forget to pay them. The examiner noted the veteran had been employed at his current job for several years. He reported concentration and memory problems, resulting in problems at work. He worked full time because he wanted to make money. He had a list of six people who he wanted to harm, and he felt that his co workers were trying to have him fired. During the objective mental status portion of the evaluation, the veteran made intermittent eye contact with the examiner. His speech was slow and somewhat halting. There was no evidence of abnormal movements. He described his mood as "a little angry." His affect was flat, and his thought processes were normal. He denied hallucinations. He registered three objects and recalled one of three after five minutes. He could not recall the remaining two objects after being prompted. He could spell the word "world" forwards, but it took him three attempts to spell it backwards. He performed the calculation 100-57 = 43 correctly on his second attempt. He was able to relate significant past personal information. He had a capacity for abstract reasoning, and his judgment was good. He denied current suicidal thoughts and plan, but reported homicidal thoughts with a list of six victims. The examiner diagnosed PTSD but stated that a GAF score related to the veteran's PTSD, alone, could not be made without resorting to speculation. Due to "great variability" between multiple reports over the years, the examiner requested that the veteran undergo neuropsychological testing to look for areas involving his PTSD symptoms and possible exaggeration of symptoms. In May 2007, the veteran reported to the psychological evaluation that was requested by the April 2007 examiner. The second examiner found that the veteran provided an accurate history. His temporal orientation was normal. Insight was not demonstrated. His affect was blunted, and he reported memory problems, such as leaving water running, leaving food on the stove, forgetting well-known phone numbers, and getting lost while driving. His mini mental status examination was normal for a person of his same age. The examiner administered the Miller Forensic Assessment of Symptoms Test, and the veteran's score did not indicate an attempt to exaggerate or malinger symptoms. Other tests also indicated that he was not exaggerating his symptoms, which lends credibility to his statements at the April 2007 examination and the May 2007 evaluation. The examiner concluded the veteran was in severe psychiatric distress, but did not comment specifically on PTSD symptoms, as the objective of the examination was to determine whether the veteran was exaggerating symptoms. VA treatment records from 2007 show the veteran participated in group therapy for his PTSD. During his therapy sessions, he reported feelings of anger and irritability. In August 2007, he denied homicidal ideation and intent. In July 2007, he attended a risk assessment because he had voiced homicidal ideation during his April 2007 VA examination. The physician concluded the veteran's risk of violence was low to medium. In June 2007, he displayed hyper arousal and discomfort when people were behind him. He reported anxiety attacks, but "not full blown panic attacks." In May 2007, he complained of poor sleep, irritability, ongoing problems with short term memory, and anger at his wife. In April 2007, he reported forgetting to turn the water off and flooding his kitchen. Also in April 2007, he reported increasing his medication for anger control. In March 2007, he reported getting along better with his co-workers. He complained of forgetfulness, specifically leaving the water running or the stove on. He described his period of depression as "intermittent." In February 2007, he complained of forgetfulness. VA treatment reports from 2006 show additional therapy for PTSD symptoms. At a December 2006 mental health evaluation, the veteran complained of feeling tense at work. He spent his spare time watching TV. He had been married to his second wife for 27 years, but stated that there was little communication between them. He felt that he was sleeping much better with the assistance of medication. He isolated himself socially. In November 2006, he complained of nightmares and kicking in his sleep. His GAF score was 50. In a second November 2006 treatment report, he stated that his medication was helping him control his anger at work. In August 2006, he complained of nightmares several nights a week, but felt that his medication helped. He reported feeling reckless with his driving habits due to irritability. In April 2006, his medications were increased to target sleep, irritability, nightmares, and anxiety. His GAF score was 45. In February 2006, he had a verbal outburst at work. Treatment reports from 2005 show the veteran had complaints of nightmares, sleep disturbance, irritability, anger, and intrusive thoughts. An October 2005 mental health assessment showed his mood was calm and euthymic. His affect was appropriate. He did not have suicidal or homicidal ideation. His sleep was partially restorative and he had a fair energy level. He engaged in hobbies appropriately. He had intermittent nightmares and flashbacks. His medication regimen was not changed. In August 2005, he told his physician that he felt angry at work, and that he had come close to verbal outbursts, but refrained because he did not want adverse consequences. An April 2005 mental status examination noted his mood was calm and euthymic. His affect was appropriate. His memory was intact. He had good insight and judgment. He engaged in hobbies appropriately. He had problems with intense feelings of irritability and anger. In March 2005, he reported that his medication helped him cope with his anger at work. Also in March 2005, he reported that short-term memory problems were having an adverse effect on his work performance. In February 2005, he stated that his memory problems caused him to make mistakes at work. As the RO correctly concluded, this evidence shows the severity of the veteran's PTSD entitled him to a higher 70 percent, but not 100 percent, rating. As reflected in a September 2004 statement from his clinical psychologist at the local VA Medical Center (VAMC) in Columbia, this evidence shows he clearly has problems with anger and irritability, especially at his job. But he has maintained full-time employment for over 10 years at the same place, indicating he is not totally impaired in an occupational sense. His PTSD also causes significant problems in his marriage, however, not the point that he is totally socially impaired. He has maintained his marriage, albeit his second one, for over 28 years and maintains relationships with his children, as well. Additionally, his job requires him to interact with people on a daily basis, and while this experience is stressful for him, he accomplishes his work with the assistance of his medication regimen. The evidence shows the veteran's PTSD is severe, and that he has symptoms that cause him significant occupational and social impairment, especially because of his anger, irritability, and memory problems. However, the evidence does not show that he has had gross impairment in his thought processes or communication. Rather, his mental health treatment records consistently show that his thought processes and content are normal. While he has a history of verbal outbursts at work due to his anger, there is no evidence that he has engaged in grossly inappropriate behavior. Additionally, the evidence does not show that he has ever had problems accomplishing activities of daily living or maintaining minimal personal hygiene. Lastly, while he suffers from well documented memory problems, they are not so severe that he has been disoriented as to time and place, forgotten his occupation, or his own name. In April 2007, he reported one instance of forgetting names of family members when speaking to them, but the record does not show this has been a recurring problem. As the Board indicated when remanding this case in November 2006, the results of the veteran's July 2004 VA examination were noticeably less significant that the level of impairment his clinical psychologist reported in the September 2004 statement. The Board pointed out that at least some of the symptoms reported in the September 2004 letter were commensurate with the level of impairment required to increase the veteran's rating to 70 percent, even if some of the other symptoms reported were not (only sufficient to maintain his prior 50 percent rating). It is not, however, necessary that he have all of the symptoms required for a particular rating to receive that rating. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). So while the veteran has experienced PTSD symptoms sufficient to justify increasing his rating from 50 to 70 percent, there is no indication these symptoms have been totally incapacitating from a social and occupational standpoint to permit raising his rating even higher - to the maximum 100-percent level. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence against this claim, in turn meaning there is no reasonable doubt to resolve in his favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to a Disability Evaluation Greater than 50 Percent Prior to September 10, 2004 The veteran filed his claim for an increased evaluation for PTSD in April 2002, and the RO increased his evaluation from 50 to 70 percent effective September 10, 2004. As mentioned, in September 2004, Dr. T. M., the veteran's VA psychologist, wrote a letter to VA describing the veteran's PTSD as "very debilitating." Dr. T. M. described the veteran's symptoms as anxiety, depression, nightmares, flashbacks, intrusive thoughts, memory impairment, and social isolation. Dr. T. M. noted that the veteran had poor impulse control due to chronic irritability and anger, which resulted in verbal outbursts at his place of employment. The veteran's marriage also was suffering due to his PTSD symptoms. Also in September 2004, a VA treatment report from the Mental Hygiene Clinic showed the veteran awoke frequently at night and had only 4 or 5 hours of sleep. He reported having nightmares every night. He stated that he had homicidal ideations about many people, but no formal plans or intent. His insight and judgment were fair, and his affect was constricted. His medications were increased as a result of his reported increase in symptoms. In July 2004, the veteran had a VA PTSD examination. The examiner reviewed the claims file for the pertinent medical and other history. The veteran reported problems at work, including arguing and angry outbursts. He did not like going to PTSD group therapy because he did not want to discuss war. He reported being married to his second wife for 25 years. He had full-time employment and used his free time to watch TV or do yard work. He used to enjoy ceramic artwork, but had not engaged in that hobby for approximately 8 to 10 months. He did not go to parties or church because he did not trust people. He reported daily intrusive thoughts of combat and nightmares five to seven times per week. He felt estranged from all people, including his wife. He had concentrating difficulties and his irritability caused problems with his ability to control his anger and road rage. On objective mental status evaluation, the veteran was cooperative with the examiner during the interview; he made good eye contact. No abnormal movements were observed. His affect was restricted. His speech was of normal rate and tone, and his thought processes were logical. He had no suicidal or homicidal ideation. He denied hallucinations. He was able to recall the three most recent Presidents, three out of three objects after three minutes, and he could do serial subtractions. His insight and judgment were "fair." The examiner diagnosed PTSD and assigned a GAF score of 55. He noted that the veteran's symptoms had "gotten a little worse since the war in Iraq," and that he had moderate difficulty with social and occupational functioning. The examiner indicated the veteran was employable. VA mental health treatment records from April, May, and June 2002 indicate the veteran was irritated at work and did not like speaking to people. At work, he had conflicts with many co-workers. He also reported problems sleeping and family conflicts. In October 2007, the RO determined the results of the July 2004 VA examination and the September 2004 treatment record and letter from Dr. T. M. showed the veteran had symptoms for both the 50 and 70 percent evaluations. But resolving all reasonable doubt in his favor, as required by 38 C.F.R. § 4.3, the RO assigned the higher 70 percent evaluation retroactively effective as of September 10, 2004, the date his symptoms began displaying more severity, as evidenced by the increase in his prescribed medication to compensate. See, too, 38 C.F.R. § 4.7 and Mauerhan, 16 Vet. App. at 442. Prior to September 10, 2004, the veteran's PTSD symptoms did not meet the disability criteria for the higher 70 percent evaluation, much less for the maximum possible 100 percent evaluation. The evidence did not show, for example, memory and concentrations problems until Dr. T. M. submitted his letter in September 2004. Additionally, while the record showed irritability and anger, continuous depression was not shown until the September 10, 2004 treatment record and Dr. T. M.'s letter. Treatment records from 2002 note the veteran's mood as "stable." Dr. T. M.'s September 2004 letter notes that the veteran had verbal outbursts and came close to acting out physically at work, and that he had severe difficulties adapting to stressful situations at work, and that the only reasons he could address stressful situations was because he took medication and went to therapy. This is documented evidence of a worsening of symptoms; previously, he had been irritable at work, and had verbal altercations with coworkers, but the inability to adapt to stressful situations was not shown. When the RO granted the veteran's increased-evaluation claim, it noted that his PTSD symptoms met some criteria for a 50 evaluation, while at the same time satisfying some of the requirements for a higher 70 percent evaluation. So resolving all reasonable doubt in his favor provided grounds for assigning the higher 70 percent rating. See again 38 C.F.R. §§ 4.3, 4.7 and Mauerhan, 16 Vet. App. at 442. But prior to the September 10, 2004, treatment record, his PTSD symptoms did not meet the requirements for this higher 70 percent rating. Dr. T. M.'s September 2004 letter was an integral basis for the increased evaluation. Prior to receiving it, the criteria for a 70 percent evaluation were not met. For these reasons and bases, the preponderance of the evidence is against the veteran's claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). There is one final point worth mentioning. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. While his PTSD interferes with his ability to work (as evidenced by the documented conflicts with his coworkers), he has nonetheless maintained full-time, steady gainful employment for over a decade. The diagnostic criteria for his PTSD account for his level of occupational impairment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Also, his evaluation and treatment has been on an outpatient basis, not as an inpatient. VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for a rating higher than 50 percent for the PTSD prior to September 10, 2004 is denied. The claim for a rating higher than 70 percent for the PTSD since September 10, 2004 also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs