Citation Nr: 0812220	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  06-08 853	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUE

Entitlement to a rating in excess of 50 percent for post-
traumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his grandson


ATTORNEY FOR THE BOARD

L. Jeng, Associate Counsel


INTRODUCTION

The veteran had active duty from June 1943 to January 1946.  

This matter comes before the Board of Veterans' Appeals 
(Board) from a June 2005 rating decision.  

In June 2007, the veteran appeared in a videoconference 
hearing before the undersigned and in July 2007, the Board 
remanded for further development. 

For good cause shown, namely the veteran's advanced age, a 
motion to advance this appeal on the Board's docket has been 
granted under the authority of 38 U.S.C.A. § 7107(a) (West 
2002) and 38 C.F.R. § 20.900(c) (2007).


FINDING OF FACT

The veteran's PTSD is productive of occupational and social 
impairment with deficiencies in most areas such as work, 
school, family relations, judgment, thinking, or mood due to 
symptoms such as suicidal ideation; near-continuous panic or 
depression affecting the ability to function independently, 
appropriately and effectively; neglect of personal appearance 
and hygiene; difficulty in adapting to stressful 
circumstances; and an inability to establish and maintain 
effective relationships.  


CONCLUSION OF LAW

The criteria for an increased rating of 70 percent, but no 
more, for PTSD have been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code 
(DC) 9411 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

In correspondence dated in April 2005 and September 2007, the 
RO satisfied its duty to notify the veteran under 38 U.S.C.A. 
§ 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007).  
Specifically, the RO notified the veteran of: information and 
evidence necessary to substantiate the claim; information and 
evidence that VA would seek to provide; and information and 
evidence that the veteran was expected to provide.  The 
veteran was instructed to submit any evidence in his 
possession that pertained to his claim.  In September 2007, 
the RO also notified the veteran of the process by which 
initial disability ratings and effective dates are 
established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

According to Vazquez-Flores v. Peake, -- Vet. App. --, No. 
05-0355, 2008 WL 239951 (Jan. 30, 2008), for an increased-
compensation claim, 38 U.S.C.A. § 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.  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 of 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 non-compensable 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. 

In April 2005, the agency of original jurisdiction (AOJ) sent 
a letter to the veteran providing notice of what the evidence 
needed to demonstrate, of his and VA's respective duties in 
obtaining evidence, and of the types of relevant evidence 
that he should provide, or ask the VA to obtain for his 
claim.  In September 2007, the veteran was notified that 
disabilities are rated on the basis of diagnostic codes and 
was told of the need to present evidence to meet the rating 
criteria and to establish an effective date of an award.  
Although this notice post-dated the initial adjudication, the 
claim was readjudicated.  Thus, the Board finds that no 
prejudice resulted because the veteran had ample time to 
submit evidence and respond to the notice, and the evidence 
indicates that the veteran was able to effectively 
participate in the appeals process.    

The Board notes that the veteran was not specifically 
informed to submit medical or lay evidence demonstrating the 
effect a worsening of his disability has on his employment 
and daily life.  The Board finds that no prejudice resulted, 
however, because the veteran was told to submit any evidence, 
to include lay statements, demonstrating that his disability 
had worsened, which would include any impact on the veteran's 
employment and daily life, and the veteran was provided 
notice of the appropriate rating criteria, which explicitly 
include effect on employment and daily life.   

The specific rating criteria for evaluating PTSD and how 
(based on what symptomatology) each rating percentage is 
assigned were provided to the veteran in the December 2005 
Statement of the Case and December 2007 Supplemental 
Statement of the Case.  Although the veteran was not sent an 
independent letter providing notice of this information, the 
records indicates that no prejudice resulted.  The claim was 
readjudicated after the notice was provided, the veteran was 
able to effectively participate extensively in the appeals 
process, and the veteran had ample time to submit evidence.  
The evidence indicates that the veteran was fully aware of 
what was necessary to substantiate this claim.   Further, 
even assuming the notice was deficient, the Board finds that 
given the veteran's statements and testimony, he had actual 
knowledge of the criteria necessary to substantiate his claim 
for a higher rating.

The veteran's pertinent medical records have been obtained, 
to the extent available.  38 U.S.C.A. § 5103A (West 2002); 38 
C.F.R. § 3.159 (2007).  There is no indication in the record 
that any additional evidence, relevant to the issue decided 
herein, is available and not part of the claims file.   There 
is no objective evidence indicating that there has been a 
material change in the service-connected disorder since the 
veteran was last examined.  38 C.F.R. § 3.327(a) (2007).  The 
duty to assist does not require that a claim be remanded 
solely because of the passage of time since an otherwise 
adequate VA examination was conducted.  See VAOPGCPREC 11-95.  
The May 2005 and September 2007 VA examination reports are 
thorough and supported by the other clinical records.  The 
examination in this case is adequate upon which to base a 
decision.  The records satisfy 38 C.F.R. § 3.326 (2007).

Analysis

Disability evaluations are determined by the application of a 
schedule of ratings, which is based on the average impairment 
of earning capacity.  Separate diagnostic codes identify the 
various disabilities.  Each disability must be viewed in 
relation to its history, with an emphasis on the limitation 
of activity imposed by the disabling condition.  Medical 
reports must be interpreted in light of the whole recorded 
history, and each disability must be considered from the 
point of view of the veteran working or seeking work.  Where 
there is a question as to which of two disability evaluations 
shall be applied, the higher evaluation is to be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating is to 
be assigned.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 
4.7.  

While the veteran's entire history is reviewed when assigning 
a disability evaluation, 38 C.F.R. § 4.1, where service 
connection has already been established and an increase in 
the disability rating is at issue, it is the present level of 
disability that is of primary concern.  Francisco v. Brown, 7 
Vet. App. 55 (1994).  A recent decision of the United States 
Court of Appeals for Veterans Claims (Court) held that in 
determining the present level of a disability for any 
increased evaluation claim, VA must consider the application 
of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 
(2007).  Thus, 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.

When evaluating a mental disorder, the rating agency shall 
consider the frequency, severity, and duration of psychiatric 
symptoms, the length of remissions, and the veteran's 
capacity for adjustment during periods of remission.  The 
rating agency shall assign a rating based on all the evidence 
of record that bears on occupational and social impairment 
rather than solely on the examiner's assessment of the level 
of disability at the moment of the examination.  When 
evaluating the level of disability from a mental disorder, 
the rating agency will consider the extent of social 
impairment, but shall not assign a rating solely on the basis 
of social impairment. See 38 C.F.R. § 4.126.  Age may not be 
considered as a factor in evaluating a service-connected 
disability.  38 C.F.R. § 4.19.

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; difficulty in 
establishing and maintaining effective work and social 
relationships.  Id.

A 70 percent rating is warranted for PTSD which is productive 
of occupational and social impairment with deficiencies in 
most areas such as work, school, family relations, judgment, 
thinking, or mood due to symptoms such as suicidal ideation; 
obsessional rituals which interfere with routine activities; 
intermittently illogical, obscure, or irrelevant speech; 
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 an inability to establish and maintain 
effective relationships.  Id.

A 100 percent evaluation is warranted if 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.  Id. 

The psychiatric symptoms listed in the above rating criteria 
are not exclusive, but are examples of typical symptoms for 
the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. 
App. 436 (2002).

VA treatment records, dated from October 2005 to August 2007, 
reflect treatment for PTSD.  The veteran has consistently 
been noted to be adequately groomed, cooperative with good 
eye contact, and in an average mood.  He displayed 
appropriate affect, was rational, and goal directed without 
looseness of association.  He denied current suicidal or 
homicidal ideation, auditory or visual hallucination, and 
paranoia.  The veteran has consistently been assigned a GAF 
score of 51. 

On VA examination in May 2005, the veteran reported having 
nightmares once every two months and taking medication to 
sleep.  He had numerous intrusive thoughts about the war, was 
easily startled, avoided crowds, did not watch war movies, 
nor did not go to restaurants often or shop in large stores.  
While he attended church regularly, he no longer goes due to 
his wife's injury.  He reported having people come and visit 
him.  On examination, the examiner observed the veteran was 
casually groomed, full cooperative, tearful at times, and 
dysphoric.  Speech (rate and rhythm) was within normal 
limits.  His mood was depressed and his affect was 
appropriate to content.  Thought process and associations 
were logical and tight without loosening of associations or 
confusion.  There was no impairment in communication.  Memory 
was grossly intact and oriented to all spheres.  The veteran 
did not complain of hallucinations and no delusional material 
was noted.  Insight and judgment were both adequate.  While 
he did report some suicidal ideation, he denied any intent.  
He also denied homicidal ideation.  The examiner noted that 
the veterans' PTSD symptoms would not preclude employment.  A 
diagnosis of chronic PTSD and a GAF score of 53 was assigned.       

At his June 2007 hearing, the veteran testified to having 
panic attacks, nightmares, and being up for over 48 hours.  
He stated that he was not able to watch television programs 
related to the war, had no social life, seldom left the 
house, and did not drive because of crowds.  He also 
indicated having homicidal and suicidal ideation and having 
memory difficulty.  The veteran's grandson indicated that it 
was getting more difficult to get the veteran to maintain his 
personal hygiene and eat properly. 

Pursuant to the Board's July 2007 remand instructions, in 
September 2007, the veteran was afforded another VA 
psychiatric examination due to his complaints of a worsening 
of his PTSD.  At the examination, the veteran complained of 
sleep problems as he only got four hours of sleep a night, of 
having nightmares about service once a week, waking up from 
these dreams nervous and shaking, and having difficulty 
returning to sleep.  He also reported intrusive dreams about 
service, being easily startled, not going out without this 
wife, going to the grocery store and leaving after getting 
what he needs, and not watching war movies.  He stated that 
he spent most of his time taking care of his wife, cooking, 
and doing all of the chores.  The veteran also stated that he 
visited with his son and grandchildren.  

Upon examination, the examiner noted that the veteran was 
casually groomed, fully cooperative, and tearful at times 
with normal speech (rate and rhythm).  His mood was 
depressed, affect was appropriate to content, thought process 
and associations were logical and tight, and he did not 
display loosening of associations or confusion.  Memory was 
grossly intact, was oriented in all spheres, did not report 
hallucinations, and no delusional material was noted.  
Insight and judgment were both adequate.  He reported 
occasional suicidal ideation but denied intent; he also 
reported occasional homicidal ideation but denied intent.  
The examiner concluded that the veteran's PTSD symptoms were 
moderate and have persisted for years and would not preclude 
employment.  He also added that there was no impairment of 
social functioning, thought processing, or communication.  
There was also no evidence of any psychiatric disorder 
precluding activities of daily living.  While the veteran had 
some depression associated with his wife's health problems, 
the GAF score was based solely on his PTSD symptoms.  A 
diagnosis of PTSD was noted and a GAF score of 48 was 
assigned.   

The GAF is a scale reflecting the psychological, social, and 
occupational functioning on a hypothetical continuum of 
mental health-illness.  See Diagnostic and Statistical Manual 
of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 
Vet. App. 240 (1995).  An examiner's classification of the 
level of psychiatric impairment at the moment of examination, 
by words or by a GAF score, is to be considered, but it is 
not determinative of the percentage VA disability rating to 
be assigned; the percentage evaluation is to be based on all 
the evidence that bears on occupational and social 
impairment.  See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 
1995).

Under DSM-IV,  GAF scores ranging between 51 and 60 are 
assigned when there are moderate symptoms (like flat affect 
and circumstantial speech, and occasional panic attacks), or 
moderate difficulty in social, occupational, or school 
functioning (e.g., few friends, conflicts with peers or co-
workers).  See Diagnostic and Statistical Manual of Mental 
Disorders (4th ed.) (DSM-IV).  GAF scores ranging between 41 
and 50 are assigned when there are 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).  

Based upon the above findings, the Board finds that the 
veteran's disability more nearly approximates a 70 percent 
disability rating for PTSD.  The evidence as a whole 
demonstrates occupational and social impairment with 
deficiencies in most areas, as required for a 70 percent 
rating under DC 9411.  With respect to whether his disability 
warrants more than a 70 percent disability rating, however, 
the Board finds that the preponderance of the evidence is 
against entering such a finding.  The veteran has not been 
shown to have total occupational and social impairment, as 
his symptoms do not preclude unemployment or activities of 
daily living.  He has consistently demonstrated normal 
thought process, associations, and orientation to all spheres 
with adequate insight and judgment.  As such, the Board finds 
that an evaluation in excess of 70 percent is not warranted.

In light of Hart, the Board has considered whether a staged 
rating is appropriate.  However, because the veteran's PTSD 
symptoms remained constant throughout the course of the 
period on appeal and as such staged ratings are not 
warranted.  

This determination is based on application of pertinent 
provisions of the VA's Schedule for Rating Disabilities.  
There is no showing that the veteran's PTSD reflects so 
exceptional or unusual a disability picture as to warrant the 
assignment of an evaluation higher than 70 percent on an 
extraschedular basis.  See 38 C.F.R. § 3.321(b)(1).  The 
disability does not result in marked interference with 
employment (i.e., beyond that contemplated in the assigned 
evaluation) or frequent periods of hospitalization, or 
otherwise render impractical the application of the regular 
schedular standards.  In the absence of these factors, the 
Board is not required to remand the claim to the RO for the 
procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See 
Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. 
Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).  


ORDER

Subject to the law and regulations governing payment of 
monetary benefits, a 70 percent rating for PTSD is granted.

____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs