Citation Nr: 0812050	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  05-13 886	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to an increased initial rating for post-traumatic 
stress disorder, evaluated as 30 percent disabling from 
June 12, 2003 to January 1, 2007 and as 70 percent disabling 
since January 2, 2007.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel





INTRODUCTION

The veteran served on active military duty from May 1965 to 
April 1968.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2004 rating action of the 
Department of Veterans Affairs Regional Office in Seattle, 
Washington.  In that decision, the RO granted service 
connection for post-traumatic stress disorder (PTSD) and 
awarded a compensable evaluation of 10 percent, effective 
from June 12, 2003, for this disability.  

During the current appeal, and specifically by a January 2005 
rating action, the RO granted an increased evaluation of 
30 percent, effective from June 12, 2003, for the 
service-connected PTSD.  Also, by a January 2007 rating 
action, the RO awarded an increased evaluation of 70 percent, 
effective from January 2, 2007, for this disability.  


FINDINGS OF FACT

1.  Between June 12, 2003 and January 1, 2007, the veteran's 
service-connected PTSD was manifested by nightmares, waking 
recollections, thoughts of violence, anger and irritability, 
feelings of sadness, avoidance of activities (including 
persons and places) that aroused recollections of trauma, 
frequent suicidal thoughts (without attempts), and some 
social isolation (including four divorces and a lack of a 
desire to attend any type of group activities and functions).  
However, a flattened affect; circumstantial, circumlocutory, 
or stereotyped speech; panic attacks more than once a week; 
difficulty in understanding complex commands; impaired 
judgment; impaired abstract thinking; and disturbances of 
motivation and mood were not shown.  

2.  Since January 2, 2007, the veteran's service-connected 
PTSD has been manifested by extreme difficulty with anger 
control and hypervigilant behaviors, an abnormal affect and 
mood with near-continuous depressed mood, suspiciousness, 
impaired judgment, moderate impairment of memory, and passive 
thoughts of death.  However, total social and industrial 
impairment is not shown.  The veteran does not exhibit gross 
impairment in thought processes, 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, or memory 
loss for names of close relatives, own occupation, or own 
name.  


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating greater 
than 30 percent for the service-connected PTSD between 
June 12, 2003 and January 1, 2007 have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, 
Diagnostic Code 9411 (2007).  

2.  The criteria for an initial disability rating greater 
than 70 percent for the service-connected PTSD since 
January 2, 2007 have not been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties To Notify And To Assist

On November 9, 2000, the President signed into law the 
Veterans Claims Assistance Act of 2000 (VCAA), 
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 
(West 2002 & Supp. 2006)).  The VCAA imposes obligations on 
VA in terms of its duty to notify and to assist claimants.  

Upon receipt of a complete or substantially complete 
application for benefits, VA is ordinarily required to notify 
the claimant and his/her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record that is necessary to substantiate the 
claim, that VA will seek to provide, and that the claimant is 
expected to provide and must ask the claimant to provide any 
evidence in his/her possession that pertains to the claim in 
accordance with 38 C.F.R. § 3.159(b)(1).  Pelegrini 
v. Principi, 18 Vet. App. 112, 121 (2004).  

VCAA notice is not required in every case, however.  The 
United States Court of Appeals for Veterans Claims (Court) 
recently held, for example, that such notice is not required 
under circumstances where a claim for service connection is 
granted, a rating and effective date are assigned, and the 
claimant files an appeal as to the initially assigned rating.  
See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006) (in 
which the Court held that, "[i]n cases where service 
connection has been granted and an initial disability rating 
and effective date have been assigned, the typical service 
connection claim has been more than substantiated-it has 
been proven, thereby rendering section 5103(a) notice no 
longer required because the purpose that the notice is 
intended to serve has been fulfilled").  Rather, under those 
circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 
and 38 C.F.R. § 3.103 are for application.  Id.  

Here, the veteran's increased rating claim essentially falls 
within this fact pattern.  Following receipt of notification 
of the March 2004 grant of service connection for PTSD, the 
veteran perfected a timely appeal of the initially assigned 
10% rating for this service-connected disability.  [During 
the current appeal, and specifically by a January 2005 rating 
action, the RO granted an increased evaluation of 30 percent, 
effective from June 12, 2003, for the service-connected PTSD.  
Also, by a January 2007 rating action, the RO awarded an 
increased evaluation of 70 percent, effective from January 2, 
2007, for this disability.]  Consequently, no section 5103(a) 
notice is required for the veteran's increased rating claim.  
As section 5103(a) no longer applies to the veteran's 
appeal-e.g., his increased rating claim-the additional 
notification provisions for increased rating claims recently 
set forth by the Court are not applicable in the present 
case.  See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. 
App. Jan. 30, 2008).  

As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 
38 C.F.R. § 3.103, the record shows that the veteran has been 
provided with various communications [including the May 2004 
notification of the March 2004 rating decision, a January 
2005 statement of the case (SOC), and supplemental statements 
of the case (SSOCs) issued in January 2007 and May 2007] that 
contain notice of VA's rating communication, his appellate 
rights, a summary of relevant evidence, citations to 
applicable law (diagnostic code), and a discussion of the 
reasons for the decision made by the agency of original 
jurisdiction.  In short, the procedural requirements of the 
law have been satisfied.  No further due process development 
is required.  

Additionally, the VCAA requires VA to make reasonable efforts 
to help a claimant obtain evidence necessary to substantiate 
his/her claim.  38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. 
§ 3.159(c), (d) (2007).  This "duty to assist" contemplates 
that VA will help a claimant obtain records relevant to 
his/her claim, whether or not the records are in Federal 
custody, and that VA will provide a medical examination 
and/or opinion when necessary to make a decision on a claim.  
38 U.S.C.A. §§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) 
(2007).  

In the present case, the Board finds that the duty to assist 
provisions of the VCAA have been fulfilled with respect to 
the increased rating issue on appeal.  All relevant treatment 
records adequately identified by the veteran have been 
obtained and associated with his claims folder.  He has been 
accorded pertinent psychiatric examinations.  There is no 
suggestion on the current record that additional evidence, 
relevant to this matter, exists and can be procured.  
Consequently, the Board concludes that no further evidentiary 
development of the veteran's increased rating claim is 
required.  

Analysis

In evaluating the severity of a particular disability, it is 
essential to consider its history.  38 C.F.R. §§ 4.1 and 4.2 
(2007).  Initially, by the March 2004 rating action, the RO 
granted service connection for PTSD (10%, effective from 
June 12, 2003).  During the current appeal, and specifically 
by a January 2005 rating action, the RO granted an increased 
evaluation of 30 percent, effective from June 12, 2003, for 
the service-connected PTSD.  Also, by a January 2007 rating 
action, the RO awarded an increased evaluation of 70 percent, 
effective from January 2, 2007, for this disability.  

As the present appeal arises from an initial rating decision 
which, in essence, established service connection and 
assigned an initial disability rating, the entire period is 
considered for the possibility of staged ratings.  In other 
words, consideration will be given to the possibility of 
separate ratings for separate periods of time based on the 
facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999).  

Disability evaluations are determined by the application of a 
schedule of ratings which is based, as far as can practicably 
be determined, on the average impairment of earning capacity.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007).  Each 
service-connected disability is rated on the basis of 
specific criteria identified by diagnostic codes.  38 C.F.R. 
§ 4.27 (2007).  

The basis of disability evaluations is the ability of the 
body as a whole, or of the psyche, or of a system or organ of 
the body to function under the ordinary conditions of daily 
life including employment.  38 C.F.R. § 4.10 (2007).  It is 
also necessary to evaluate the disability from the point of 
view of the veteran working or seeking work and to resolve 
any reasonable doubt regarding the extent of the disability 
in the veteran's favor.  38 C.F.R. §§ 4.2, 4.3 (2007).  If 
there is a question as to which evaluation to apply to the 
veteran's disability, the higher evaluation will be assigned 
if the disability picture more nearly approximates the 
criteria for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7 (2007).  

It is VA's defined and consistently applied policy to 
administer the law under a broad interpretation, consistent, 
however, with the facts shown in every case.  When, after 
careful consideration of all procurable and assembled data, a 
reasonable doubt arises regarding service origin, the degree 
of disability, or any other point, such doubt will be 
resolved in favor of the claimant.  By reasonable doubt it is 
meant that an approximate balance of positive and negative 
evidence exists which does not satisfactorily prove or 
disprove the claim.  It is a substantial doubt and one within 
the range of probability as distinguished from pure 
speculation or remote possibility.  See, 38 U.S.C.A. § 
5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).  

According to the applicable rating criteria, a 30 percent 
rating will be granted with evidence of 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 normal conversation), due to 
such symptoms as:  depressed mood, anxiety, suspiciousness, 
panic attacks (weekly or less often), chronic sleep 
impairment, and mild memory loss (such as forgetting names, 
directions, and recent events).  38 C.F.R. § 4.130, 
Diagnostic Code 9411 (2007).  

A 50 percent evaluation will be assigned with evidence of 
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.  Id.  

A 70 percent evaluation will be awarded with evidence of 
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); and inability to establish and maintain effective 
relationships.  Id.  

A 100 percent rating is assigned 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; and memory loss for names of 
close relatives, own occupation, or own name.  Id.  

Furthermore, a Global Assessment of Functioning (GAF) rating 
is a scale 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 Diagnostic and Statistical Manual of 
Mental Disorders (4th ed.1994).  A GAF score of 61 to 70 is 
reflective of some mild symptoms (e.g., depressed mood and 
mild insomnia) or some difficulty in social, occupational, or 
school functioning (e.g., occasional truancy, or theft within 
the household) but generally functioning pretty well with 
some meaningful interpersonal relationships.  A GAF score of 
 31 to 40 is illustrative of some impairment in reality 
testing or communication (e.g., speech is at times illogical, 
obscure, or irrelevant) or major impairment in several areas, 
such as work or school, family relations, judgment, thinking, 
or mood (e.g., depressed man avoids friends, neglects family, 
and is unable to work; a child frequently beats up younger 
children, is defiant at home, and is failing at school).  

In the present case, the veteran contends that the 
symptomatology associated with his service-connected PTSD is 
more severe than that which is reflected by the currently 
assigned 30 percent rating between June 12, 2003 and 
January 1, 2007 and 70 percent evaluation since January 2, 
2007.  The veteran's assertions regarding his 
service-connected psychiatric pathology involve matters 
capable of lay observation, and are deemed to be competent 
evidence.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  
Such descriptions must, however, be considered in conjunction 
with the clinical evidence of record and the pertinent rating 
criteria.  

A.  Schedular Rating For Service-Connected PTSD Between 
June 12, 2003 And January 1, 2007

According to reports of psychiatric evaluation and treatment 
sessions completed between June 12, 2003 and January 1, 2007, 
the veteran's service-connected PTSD was manifested by 
nightmares, waking recollections, thoughts of violence, anger 
and irritability, feelings of sadness, avoidance of 
activities (including persons and places) that aroused 
recollections of trauma, and frequent suicidal thoughts 
(without attempts).  He denied attending any type of group 
(e.g., church) activities and functions and noted that he had 
been married and divorced four times.  

Importantly, however, these mental status evaluations also 
demonstrated casual dress, neat grooming, orientation times 
three, appropriate psychomotor behavior, appropriate mood and 
affect, as well as no cognitive limitations, thought 
disorder, delusions, hallucinations, or paranoia.  The 
veteran reported that he had two close friends and that his 
daily activities included working on a home remodeling 
project since February 2003, mowing his grass, cleaning the 
house, cooking, doing laundry, shopping, fishing, and 
hunting.  

A July 2003 psychiatric examiner diagnosed, on Axis I, 
alcohol abuse, marijuana abuse, and PTSD complicated by 
embellishment of symptomatology.  The examiner explained that 
the veteran had "mild limitations with work and social 
relationships" and assigned, with respect to the veteran's 
PTSD, a GAF score of 65, which was reflective of some mild 
symptoms (e.g., depressed mood and mild insomnia) or some 
difficulty in social, occupational, or school functioning 
(e.g., occasional truancy, or theft within the household) but 
generally functioning pretty well with some meaningful 
interpersonal relationships.  Richard v. Brown, 9 Vet. App. 
266, 267 (1996), citing Diagnostic and Statistical Manual of 
Mental Disorders (4th ed.1994).  In support of these 
conclusions, the examiner explained that the veteran did not 
describe difficulties performing activities of daily living 
or following commands.  

Between June 12, 2003 and January 1, 2007, the veteran sought 
very little outpatient psychiatric treatment.  In fact, in 
August 2004, he failed to report for an outpatient PTSD 
consultation, and, in the following month, he declined any 
further outpatient psychiatric care.  He specifically stated 
at that time that he would contact the medical facility "if 
he finds himself struggling in the future."  Later, in March 


2005 when he received assistance in the claims adjudication 
process, he again stated that he was "not interested in 
counseling services."  

While the veteran was divorced four times and did not attend 
any type of group activities or functions, he admitted to 
having two close friends and daily activities (including in 
particular shopping, fishing, and hunting) which required him 
to leave his home.  He associated any memory problems with 
his age.  An examiner concluded that the veteran's 
psychiatric symptomatology caused only mild social and 
occupational impairment.  

Significantly, between June 12, 2003 and January 1, 2007, a 
flattened affect; circumstantial, circumlocutory, or 
stereotyped speech; panic attacks more than once a week; 
difficulty in understanding complex commands; impaired 
judgment; impaired abstract thinking; and disturbances of 
motivation and mood were not shown.  Clearly, therefore, the 
next higher rating of 50 percent for the veteran's 
service-connected PTSD, between June 12, 2003 and January 1, 
2007, is not warranted.  38 C.F.R. § 4.130, Diagnostic 
Code 9411 (2007).  

B.  Schedular Rating For Service-Connected PTSD Since 
January 2, 2007

The claims folder contains no records of outpatient 
psychiatric treatment since January 2, 2007.  On January 2, 
2007, however, the veteran did undergo a psychiatric 
examination.  At that time, the veteran described daily 
trouble sleeping, intrusive memories, flashbacks, extreme 
difficulty with anger control and hypervigilant behaviors, a 
frequent depressed mood, feelings of low self-worth, a lack 
of motivation, and passive suicidal ideation.  He reported 
having no friends, being very isolated and detached from 
others, and having consistent difficulty maintaining 
employment (due to his anger).  He believed that his 
psychiatric symptoms render his daily functioning almost 
completely debilitating.  A mental status evaluation 
demonstrated an abnormal affect and mood with near-continuous 
depressed mood, signs of suspiciousness, impaired judgment 
(as illustrated by his persistent substance abuse), moderate 
impairment of memory, and passive thoughts of death.  

The examiner diagnosed, on Axis I, PTSD, a major depressive 
disorder, alcohol dependence, and cannabis dependence.  In 
addition, the examiner assigned a GAF score of 40, which is 
reflective of some impairment in reality testing or 
communication (e.g., speech is at times illogical, obscure, 
or irrelevant) or major impairment in several areas, such as 
work or school, family relations, judgment, thinking, or mood 
(e.g., depressed man avoids friends, neglects family, and is 
unable to work; a child frequently beats up younger children, 
is defiant at home, and is failing at school).  Richard 
v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and 
Statistical Manual of Mental Disorders (4th ed.1994).  In 
assigning the GAF of 40, the examiner acknowledged that 
veteran's difficulty in establishing and maintaining 
effective work and social relationships.  

However, the January 2007 examination also demonstrated 
normal orientation, appropriate appearance and hygiene, 
appropriate behavior, normal communication and speech, normal 
concentration, appropriate thought processes, and no panic 
attacks, delusions, hallucinations, obsessional rituals, 
homicidal ideation, or difficulty understanding commands.  
The veteran denied receiving any recent psychiatric 
treatment.  The examiner concluded that "continuous 
treatment is not needed to control this condition" but did 
recommend enrollment in a treatment program.  In addition, 
the examiner believed that the veteran posed no threat of 
persistent danger or injury to himself or others.  

Significantly, since January 2, 2007, 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, 
and memory loss for names of close relatives, own occupation, 
or own name have not been shown.  Without such evidence, a 
total schedular rating for the veteran's service-connected 
PTSD, since January 2, 2007, is not warranted.  38 C.F.R. 
§ 4.130, Diagnostic Code 9411 (2007).  



C.  Extraschedular Consideration

Moreover, the Board does not find that consideration of an 
extraschedular rating under the provisions of 
38 C.F.R. § 3.321(b)(1) is warranted for any time during the 
current appeal.  That provision provides that, in exceptional 
circumstances, where the schedular evaluations are found to 
be inadequate, the veteran may be awarded a rating higher 
than that encompassed by the schedular criteria, as shown by 
evidence showing that the disability at issue causes marked 
interference with employment, or has in the past or continues 
to require frequent periods of hospitalization rendering 
impractical the use of the regular schedular standards.  Id.  
Importantly, at no time during the current appeal has the 
veteran's service-connected PTSD required hospitalization or 
resulted in marked interference with employment.  In fact, on 
several occasions throughout the current appeal, the veteran 
specifically declined outpatient psychiatric care.  The 
Social Security Administration determined that he was 
unemployable due to his nonservice-connected low back 
disability.  It is not shown that his service-connected PTSD 
results in total social and industrial impairment.  

38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the 
degrees of disability specified 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."  Factors such as 
requiring periodic medical attention are clearly contemplated 
in the Schedule and provided for in the evaluations assigned 
therein.  What the veteran has not shown in this case is that 
his service-connected PTSD has resulted in unusual disability 
or impairment that rendered the criteria and/or degrees of 
disability contemplated in the Schedule impractical or 
inadequate at any time during the current appeal.  
Accordingly, the Board concludes that consideration of the 
provisions set forth at 38 C.F.R. § 3.321(b)(1) is not 
warranted for the veteran's service-connected PTSD for any 
time during the current appeal.  




ORDER

An initial disability rating greater than 30 percent from 
June 12, 2003 to January 1, 2007 for PTSD is denied.  

An initial disability rating greater than 70 percent since 
January 2, 2007 for PTSD is denied.  



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs