Citation Nr: 0812284	
Decision Date: 04/14/08    Archive Date: 05/01/08

DOCKET NO.  06-32 557	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Saira Sleemi, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1968 to 
February 1970.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a March 2005 rating decision of the Regional 
Office (RO) that denied an evaluation in excess of 30 percent 
for PTSD.  The veteran disagreed with this decision.


FINDING OF FACT

The veteran's service-connected PTSD is manifested by 
symptoms including sleep disturbance, nightmares, depression, 
social isolation, anger and irritability.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

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 the veteran 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).  Such 
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, supra.

In this case, in a January 2005 letter, issued prior to the 
decision on appeal, the RO provided notice to the veteran 
regarding what information and evidence is needed to 
substantiate the 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 to advise VA of or submit any additional 
evidence that pertains to the claim.  In November 2006, the 
veteran was advised of the evidence needed to show that his 
disability was worse in severity including evidence 
addressing the impact of his condition on employment and the 
severity and duration of his symptoms.  See Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  The veteran was also provided 
with notice of the information and evidence needed to 
establish a disability rating and an effective date for his 
disability in that letter.  The pertinent rating criteria for 
his disability were provided in the August 2006 statement of 
the case.  The case was last readjudicated in June 2007. 

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 multiple contentions and hearing testimony, records 
of group and individual therapy sessions from a Vet Center, 
VA outpatient treatment records, and VA examination reports.

As discussed above, the VCAA provisions have been considered 
and complied with.  The veteran was notified and aware of the 
evidence needed to substantiate this claim, the avenues 
through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  The veteran has been an active 
participant in the claims process and provided testimony 
regarding the impact of his disability on his daily 
functioning.  The veteran indicated that he receives 
treatment for PTSD at the Vet Center and the 
VA Medical Center, and these records have been obtained.  
There is no indication that there is additional evidence to 
obtain, and no additional notice is necessary.  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 claimant.  See Sanders, supra.  
Thus, any such error is harmless and does not prohibit 
consideration of this matter on the merits.  See Conway, 
supra; Dingess, supra;
 see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. 
Cir. 1998).

Analysis

The Board has reviewed all the evidence in the appellant'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 appellant 
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 each claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000); See Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).

Under the applicable criteria, disability evaluations are 
determined by the application of a schedule of ratings which 
is based on average impairment of earning capacity.  38 
U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes 
identify the various disabilities.  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; 
resolving any reasonable doubt regarding the degree of 
disability in favor of the claimant, 38 C.F.R. § 4.3; 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; 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.  See Schafrath v. Derwinski, 1 
Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an 
increase in the level of a service-connected disability is at 
issue, the primary concern is the present level of 
disability.  Francisco v. Brown, 7 Vet. App. 55 (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 evaluated pursuant to the General 
Rating Formula for Psychoneurotic Disorders which provides 
for the following ratings:

A 100 percent rating 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.

A 70 percent rating is warranted when there is 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.

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 effective work and social relationships.

A 30 percent rating is warranted 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 
conversation normal), 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, recent events). 

One factor for consideration is the Global Assessment of 
Functioning (GAF) score, which is a scale reflecting the 
"psychological, social, and occupational functioning on a 
hypothetical continuum of mental health-illness."  See 
Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 
8 Vet. App. 240, 242 (1995).  GAF scores ranging from 51 to 
60 indicate moderate symptoms (e.g., flat affect and 
circumstantial speech, occasional panic attacks) or moderate 
difficulty in social, occupational, or school functioning 
(e.g., few friends, conflicts with peer or coworkers).  A GAF 
score of 41 to 50 indicates serious symptoms and serious 
impairment in social, occupational, or school functioning 
(e.g., no friends), while a GAF score of 31 to 40 indicates 
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 GAF score of 21 to 30 indicates that behavior is 
considerably influenced by delusions or hallucinations, or 
serious impairment in communication or judgment (e.g., 
sometimes incoherent, acting grossly inappropriately, 
suicidal preoccupation), or an inability to function in 
almost all areas (e.g., stays in bed all day; no job, home, 
or friends).  A GAF score of 11 to 20 indicates that there is 
some danger of hurting oneself or others (e.g., suicide 
attempts without clear expectation of death; frequently 
violent; manic excitement), or an occasional failure to 
maintain minimal personal hygiene, or gross impairment in 
communication.  See Diagnostic and Statistical Manual of 
Mental Disorders, (4th ed. 1994) (DSM-IV).

While the Rating Schedule does indicate that the rating 
agency must be familiar with the Diagnostic and Statistical 
Manual of Mental Disorders, Fourth Edition (DSM IV), it does 
not assign disability percentages based solely on GAF scores.  
See 38 C.F.R. § 4.130 (2007).  Accordingly, GAF scores do not 
automatically equate to any particular percentage in the 
Rating Schedule.  Rather, they are but one factor to be 
considered in conjunction with all the other evidence of 
record.

The veteran filed his claim for an increased rating in 
October 2004.  He contends that his PTSD warrants an 
evaluation in excess of 30 percent.  

A February 2005 VA examination report reflects that the 
veteran reported his PTSD symptoms were manifested by 
irritability, isolation, insomnia, severe nightmares (4 to 5 
times a month), flashbacks, constant hypervigilance and panic 
attacks (once a month).  In addition the veteran reported 
that he had hit his wife while sleeping because he thought he 
was being chased.  His wife also stated that he wakes up from 
his sleep talking about how he is going to hurt someone or 
get a gun.  A mental status examination revealed a restricted 
and depressed affect, logical and goal directed thought 
processes, fair to good judgment and insight, severe social 
impairments with no friends and discord with family, very 
limited social contacts and a severe distrust of others.  The 
examiner noted the veteran was cooperative and pleasant with 
good hygiene.  The veteran was assigned a GAF score of 52.

Records from the Vet Center reflect the veteran was 
participating in ongoing individual and group therapy since 
2001.  The individual therapy reports primarily note the 
veteran discussing issues involving his wife's illness and 
subsequent passing, and issues involved in raising his 
grandsons whom he adopted.  At each visit he was assessed for 
risk and none was shown.  In August 2006 the therapist listed 
the veteran's issues to include anxiety, sleep disturbance, 
instances of irritability, anger and depression.

In a November 2006 VA examination report, the veteran 
reported seeing a psychiatrist in the VA outpatient center in 
Washington, D.C. for medication, ongoing treatment for PTSD 
and sleep difficulty since 2000.  He also reported taking 
medication, Wellbutrin and Ambien, as well as attending 
weekly group therapy and monthly individual counseling for 
PTSD.  The veteran reported being retired since 2000.  The 
examination report reflects that the veteran isolated 
himself, appropriately interacted with others, was capable of 
basic activities of daily living and was able to meet family 
responsibilities.  In addition, the examination report 
reflects that the veteran's PTSD was manifested by chronic 
and continuous symptoms of sleep impairment, tearfulness 
without reason, depression, depressed mood, anxiety, 
persistent avoidance of stimuli associated with trauma 
(detachment, restricted affect, sense of poor future), and 
re-experiencing of trauma (including recollections, dreams, 
intense distress to internal or external cues and increased 
arousal such as hypervigilance, poor sleep, irritability and 
startle response).  The examiner noted that the veteran's 
grief from his wife's death may be interfering with his 
activities.  The examination also did not reflect any current 
suicidal or homicidal ideation, past suicidal or homicidal 
ideation, communication impairment or panic attacks.  The 
examiner concluded that the veteran was in a great deal of 
emotional pain following the death of his wife and that, 
along with his responsibilities, had exacerbated his 
symptoms. The veteran was assigned a GAF score of 51.

VA outpatient treatment records primarily reflect treatment 
for physical disabilities.  However, an outpatient treatment 
report in December 2006 noted the veteran indicated he was 
having sleeping problems, as well as depression as it was the 
first holiday without his wife.  He and the kids kept up 
holiday traditions, however.  It was noted that he went out 
for his birthday with family and friends, and enjoyed 
himself.  There was no suicidal or homicidal ideation.    

In a February 2008 hearing before the Board, the veteran 
testified that his current PTSD was manifested by anger, 
irritability, isolation, nightmares, disrupted sleep, and a 
little problem with concentration, but no real memory loss 
other than forgetting what he went in a room for.  He 
reported that suicide had occurred to him, but he would never 
follow through with suicide because he promised his wife that 
he would take care of their grandchildren.  He further 
testified that he had retired because he was hostile at work.  

Based on the evidence of record, the Board finds that the 
veteran's PTSD symptoms do not meet the criteria for an 
evaluation higher than 30 percent.  The veteran's PTSD does 
not result in impaired speech, panic attacks more than once a 
week, difficulty in understanding complex commands, 
impairment of short and long-term memory, impaired judgment, 
or impaired thinking that would justify a higher evaluation.  

While the record does reveal that the veteran tends to 
isolate, social impairment alone cannot form the basis for a 
higher evaluation.  38 C.F.R. § 4.126(b).  Moreover, the 
veteran testified that he occasionally visits or calls 
family, gets along well with his sisters-in-law and 
grandsons, and he goes to meetings at the Disabled American 
Veterans once a month.  It was noted he was employed as a 
nurse's aid for 30 years with the local government, and 
retired in 2000.  Thus, difficulty in establishing and 
maintaining effective work and social relationships is not 
shown such that a higher rating is warranted.  Further, while 
some depression and occasional panic attacks have been 
reported, such are contemplated in the 30 percent rating 
assigned.  Additionally, the veteran reported he does all of 
the cooking, shopping, and cleaning.  Thus, disturbance of 
motivation and mood is not shown.  Finally, while there is 
some mention of suicidal thoughts, the veteran has not been 
reported in the medical evidence to be experiencing suicidal 
ideation, there is no reported intent or plan, and the 
veteran has denied that he would ever do such.  Moreover, the 
GAF scores assigned do not reflect persistent problems with 
such, and the Vet Center records all note negative risk 
assessments.  

Thus, the Board finds that the medical evidence of record as 
a whole reflects the veteran's symptoms are contemplated in 
the 30 percent evaluation presently assigned, and that his 
symptoms do not more nearly approximate the criteria for a 
higher evaluation.  Thus, the claim for a rating in excess of 
30 percent is not warranted.  

In addition, there is no evidence of an exceptional or 
unusual disability picture with related factors, such as 
marked interference with employment or frequent periods of 
hospitalization, so as to warrant referral of the case to 
appropriate VA officials for consideration of an extra 
schedular rating under 38 C.F.R. § 3.321(b)(1); Shipwash v. 
Brown, 8 Vet. App. 218 (1995).  Here, the record does not 
reflect that the veteran has been hospitalized for his PTSD.  
In addition, the veteran has been retired since 2000, and the 
objective symptoms do not support a finding of marked 
interference with employment.  In this regard, the GAF scores 
assigned reflect moderate impairment.  Thus, referral for 
extraschedular consideration is not warranted.

In reaching the conclusions 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); Ortiz v. 
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55-57 (1990).   


ORDER

An evaluation in excess of 30 percent for PTSD is denied.


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


 Department of Veterans Affairs