Citation Nr: 0812429 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-03 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service connected post-traumatic stress disorder (PTSD), from February 28, 2003 through March 7, 2005. 2. Entitlement to an initial rating in excess of 50 percent for service connected PTSD, from May 1, 2005. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD B. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from December 1947 to April 1954. This matter is before the Board of Veterans' Appeals (Board) from an October 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for PTSD, evaluating it at 30 percent from February 28, 2003, the date the RO received the veteran's claim. The RO issued a notice of the decision in October 2004, and the veteran timely filed a Notice of Disagreement (NOD) as to the rating assigned in December 2004. Subsequently, in November 2005 the RO provided a Statement of the Case (SOC), and thereafter, in January 2006, the veteran timely filed a substantive appeal. Thereafter, in August 2007, the RO issued another decision and notice of decision, which granted a temporary total disability rating from March 8, 2005 through April 30, 2005, due to hospitalization for PTSD under 38 C.F.R. § 4.29, and continued the 30 percent rating from May 1, 2005. Then, in October 2007, the RO provided yet another decision, which elevated the veteran's PTSD evaluation to 50 percent from May 1, 2005. It issued a notice of this decision in December 2007 as well as a Supplemental Statement of the Case (SSOC). The veteran did not request a hearing on this matter. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of his claim and has notified him of the information and evidence necessary to substantiate the claim addressed in this decision; of the information VA failed to provide or failed to provide in a timely fashion, any resulting prejudice has been rebutted. 2. From February 28, 2003 through August 1, 2003, the veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity and a GAF scale score of 41; while there is some indication of suicidal ideation and difficulty in adapting to stressful circumstances, his PTSD was not productive of social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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; or inability to establish and maintain effective relationships. 3. From August 2, 2003 through November 21, 2004, the veteran's PTSD was not manifested by 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; or difficulty in establishing and maintaining effective work and social relationships and the only GAF scale score reported during this time was 75 based upon a thorough mental status examination. 4. From November 22, 2004 through March 7, 2005, the veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity; while there is some indication of suicidal ideation and difficulty in adapting to stressful circumstances, his PTSD was not productive of social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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; or inability to establish and maintain effective relationships. 5. From May 1, 2005, the veteran's PTSD has been manifested by social and occupational impairment with deficiencies in most areas; the only GAF scale score based upon examination reported during this time was 58. CONCLUSIONS OF LAW 1. The schedular criteria for an initial rating of 50 percent, but no more than 50 percent, for service connected PTSD from February 28, 2003 through August 1, 2003, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2007). 2. The schedular criteria for an initial or staged rating in excess of 30 percent for service connected PTSD from August 2, 2003 through November 21, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2007). 3. The schedular criteria for a staged rating of 50 percent, but no more than 50 percent, for service connected PTSD from November 22, 2004 through March 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2007). 4. The schedular criteria for an initial or staged rating in excess of 50 percent for service connected PTSD from May 1, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the July 2003 letter sent to the veteran by the RO adequately apprised him of most of the information and evidence needed to substantiate the claim, and of the information it failed to provide or failed to provide in a timely fashion, any resulting prejudice to the veteran has been rebutted. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (same). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id., at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The June 2003 letter from the RO satisfies most of these mandates. It informed the veteran about the type of evidence needed to support his service connection claim, and clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records, employment records and records held by any Federal agency, provided the veteran gave consent and supplied enough information to enable their attainment. It made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. This letter additionally apprised the veteran that VA would schedule a medical examination or obtain a medical opinion for him if the RO determined such to be necessary to make a decision on the claim. The Board thus finds that the veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board notes that the July 2003 letter did not specifically ask the veteran to provide VA with any other supporting evidence or information in his possession. Where such an error occurred, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders, 487 F.3d at 886, 889 (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Sanders, the Federal Circuit 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) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. An error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield, supra, at 116; accord Sanders, supra, at 891 ("this opinion does not . . . change the rule that reversal requires the essential fairness of the adjudication to have been affected"). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Mayfield, supra; accord Sanders, supra. "[A]n error is not prejudicial when [it] did not affect 'the essential fairness of the [adjudication],'" see Mayfield, supra, at 121, and non- prejudicial error may be proven by a showing that "the purpose of [VCAA] notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the [defective] notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders, supra, at 889; accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted in defective VCAA notice when the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). Accordingly, "there could be no prejudice if the purpose behind the notice has been satisfied . . . that is, affording a claimant a meaningful opportunity to participate effectively in the processing of [the] claim. . . ." Mayfield, supra, at 128. The Board determines that any presumed prejudice as a result of the defective VCAA notice has been rebutted. Specifically, in his January 2006 substantive appeal, the veteran indicated that "I will acquire some of my records from my treatment and provide them upon receipt," and, in February 2006, the veteran offered such additional supportive evidence. Thereafter, in an April 2006 correspondence, he affirmed that he had received VCAA notice about the evidence and information needed to substantiate the claim and that he knew that he could "indicate whether you intend to submit additional information or evidence you know about that would help support your claim." He also conveyed at this time that he "had no other information or evidence to give VA to substantiate my claim. Please decide my claim as soon as possible." In addition, in its December 2007 SSOC cover letter, the RO apprised the veteran that "you may always send us more evidence about the claim you are appealing." Thereafter, on March 4, 2008 the veteran, through his accredited representative, submitted a VA Form 646, which presented the veteran's argument on appeal, and cited to supportive evidence previously offered, namely VA inpatient treatment records and a letter from the Vet Center dated January 2006. In addition, on March 6, 2008 the RO sent a letter to the veteran, indicating that it had certified his appeal to the Board and directing him that he could ask to appear before the Board for a hearing and send the Board additional evidence concerning the appeal. The veteran has not responded with any additional evidence. Under such circumstances, and in view of this cumulative body of evidence, the Board concludes that any presumed prejudice to the veteran as a result of the lack of "evidence in your possession" language in the July 2003 RO letter has been rebutted, as he has behaved in a manner that leads the Board to conclude that he actually understood that he should submit all pertinent evidence in his possession that could support his claim. With respect to the Dingess requirements, the June 2003 RO letter provided the veteran with notice of what type of information and evidence was needed to substantiate the service connection claim, but it failed to apprise him of notice of the type of evidence necessary to establish a disability rating or effective date for the rating. Instead, the December 2007 SSOC provided him with notification of these two elements. The Board recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide most of such notice to the veteran prior to the October 2004 RO decision that is the subject of this appeal in its July 2003 letter. However, as noted above, the RO supplied belated notice of the Dingess elements relating to effective dates and calculation of disability ratings. Despite this timing error, the Board concludes that any presumed prejudice has been rebutted, given the fact that neither the veteran nor his accredited representative has raised any issue relating to the February 2003 effective date assigned to the initial grant of service connection for PTSD. In addition, with respect to the manner in which VA calculates disability ratings, the veteran has demonstrated actual knowledge of this information, as reflected in his February 2006 statement where he asked for a 70 percent evaluation, as well as his accredited representative's March 2008 VA Form 646, where he reproduced verbatim the rating criteria governing 50 percent, 70 percent and 100 percent evaluations for PTSD. Dalton, 21 Vet. App. at 30. Having shown actual knowledge of said applicable rating criteria, any presumed prejudice as a result of the belated Dingess notice has been rebutted. The Board parenthetically notes that the recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which outlined specific VCAA notice requirements for increased rating claims does not apply to the instant case, as the appeal surrounds an initial higher rating claim, rather than an increased rating claim. See VAOPGCPREC 8-2003 (Dec. 22, 2003) (determining that additional VCAA notice as to "downstream" issues such as effective date or rating assigned not required); see also Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). In any event, even if the principles enunciated in Vazquez did apply, the veteran has demonstrated actual knowledge of applicable rating criteria for PTSD, to include the impact on his work, most recently in the March 2008 VA Form 646. Dalton, 21 Vet. App. at 30. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence, and the veteran in fact did receive August 2003 and September 2007 VA examinations, which were thorough in nature and adequate for the purposes of deciding this claim. The Board finds that the medical evidence of record is sufficient to resolve this appeal, and the VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Law & Regulations a. Calculation of Disability Ratings 38 U.S.C.A. § 1155 sets forth provisions governing disability ratings, and it directs the Secretary to "adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries." The schedule of ratings must provide for ten grades of disability, and no more, ranging from 10 percent to 100 percent in 10 percent intervals, upon which the payments of compensation shall be based. 38 U.S.C.A. § 1155. In addition, "the Secretary shall from time to time readjust this schedule of ratings in accordance with experience." 38 U.S.C.A. § 1155. To this end, the Secretary promulgated 38 C.F.R. § 3.321(a), which requires the use of a "Schedule for Rating Disabilities . . . for evaluating the degree of disabilities in claims for disability compensation . . . and in eligibility determinations." The provisions contained in the rating schedule approximate the average impairment in earning capacity in civil occupations resulting from a disability. 38 C.F.R. § 3.321(a); accord 38 U.S.C.A. § 1155 ("The ratings shall be based, as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations"). Separate diagnostic codes pertain to the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. With respect to evaluations for PTSD, 38 C.F.R. § 4.130 sets forth the applicable schedule of ratings for mental disorders. 38 C.F.R. § 4.130. Specifically, Diagnostic Code 9440 governs general disability ratings for mental disorders, to include PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9440; see 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this Code, a 30 percent rating is awarded for "[o]ccupational 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, mild memory loss (such as forgetting names, directions, recent events)." 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440. A veteran will garner a 50 percent rating in the presence of "[o]ccupational 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." 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440. A claimant will generate a 70 percent evaluation with "[o]ccupational 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." 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440. Finally, a 100 percent total disability rating will be secured by a veteran who experiences "[t]otal 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." 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440. The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id., at 443. Thus, in addition to these rating criteria, the GAF score, which represents the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness," is also important in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). Like an examiner's assessment of the severity of a condition, a GAF score assigned in a case is not dispositive of the evaluation issue; rather, the Board must consider the GAF score in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). b. Initial Higher Ratings The Board recognizes the distinction between a circumstance where a veteran challenges an initial disability rating (a Fenderson appeal), as here, and where a veteran files a claim for an increased rating (a Francisco claim). Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). In the former case, the veteran seeks appellate review of the RO's initial disability rating because of his dissatisfaction with it; in the latter case, the veteran files a new claim, asking the RO to increase the disability rating because his disability has worsened since the prior rating. See id.; see also Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992) (discussing aspects of a claim for increased disability rating). Thus, in the latter case, the veteran seeks a new, increased disability rating due to an alleged change in his condition, while in a Fenderson appeal, the veteran objects to the initial disability rating granted by the RO as being too low. In either circumstance, the Board may assign separate ratings for separate periods of time based on the facts found, a practice known as "staged" rating. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"); Fenderson, 12 Vet. App. at 126. Such staged ratings "account[] 'for the possible dynamic nature of a disability while the claim works its way through the adjudication process.'" Hart, supra, at 509 (quoting O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007)). Under Fenderson, however, the Board will give consideration to all the evidence of record from the date of the veteran's claim. See Fenderson, supra, at 126, 127. c. Standard of Proof 38 U.S.C.A. § 5107 sets forth the standard of proof applied in decisions on claims for veterans' benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). III. Analysis a. Factual Background March 2003 and April 2003 VA medical notes reflect that the veteran had a drawn mood and constricted affect, without perceptual distortions or abnormalities in thought process, content or speech. He worried about dying and explained that he had trouble communicating with others. The veteran also indicated that he tended to lash out at strangers and acknowledged that he had anger problems. In May 2003, the veteran described how he had been busy with volunteer work and was looking forward to partaking in his daughter's birthday celebration. He described how he would lose his temper with his grandchildren, and would blow up at his daughters. He also noted that the events since September 11, 2001 had made him feel as though he was on the front lines again. The veteran had an anxious mood. At this time, he received a GAF score of 41. June 2003 VA mental health records disclose that the veteran had some Korean war-related issues that had arisen with the anniversary of the start of the war. He expressed feelings of anger and that he had another road rage incident recently. The veteran appeared well-groomed with a euthymic mood. On August 2, 2003 the veteran underwent a VA psychiatric examination. The clinician reviewed the claims file and service records. The veteran described having the social support of his wife and daughters. He appeared neatly groomed, and was alert and oriented as to time, place and person with a coherent, and goal-directed thought process and no obvious signs of psychotic symptoms or delusional thinking. He had clear, brief and concrete speech at a normal rate although his mood appeared anxious, and the veteran had grossly intact cognitive functioning. His capacity for insight also appeared intact, and the veteran displayed no memory impairment. He denied suicidal ideation at the present time. Based on these data, the examiner determined that the veteran had recurrent thoughts and war-related memories and avoided war-related stimuli. He had persistent symptoms of hyperarousal, to include sleep impairment, irritability, poor concentration, hypervigilance, easy startle response, depression, concentration problems, and restlessness. She stated that the veteran reported no difficulty with work environment or relationships with co-workers and had good relations with his wife and daughters. The clinician also stated that the veteran's "psychological difficulties appear highly related to his physical and medical conditions and recent stressful life events, e.g., declining health, obesity, unemployment due to medical condition, limited finance, and phase of life problems, and minimally related to PTSD." She therefore concluded that the veteran had mild PTSD with mild depressive symptoms and assigned a GAF score of 75, noting that the veteran had some meaningful interpersonal relationships. An early September 2004 VA medical record reflects that the veteran had suicidal ideation. He had put his gun on his desk, but decided not to use it, as he felt it was the "coward's way out." The veteran had a depressed mood, but appeared well-groomed, and he continued with the Vet Center support group. As reflected in a subsequent September 2004 VA medical record, the veteran denied having any more thoughts of suicide, and he noted that he had put his gun away and placed the bullets in an inaccessible location. He continued to benefit from the PTSD support group, and looked forward to his Fishing Buddies program commencing in the fall. He appeared well-groomed with a slightly depressed mood. October 2004 VA medical records indicate that the veteran had a slightly depressed mood, but appeared well-groomed. He felt frustrated with his wife and her understanding of his PTSD. Another October 2004 VA medical report denotes that the veteran had chronic nightmares and sleep disturbances but it was also noted that he had a euthymic mood and seemed generally more upbeat and less anxious or angry. When seen on November 8, 2004, when asked how he was doing, it was noted that he gave a "thumbs up" gesture. It was reported in a November 22, 2004 VA out-patient clinic record that the veteran had a down mood. He seemed tired and discouraged, in addition to appearing more "antsy" than normal. He did not sleep well. He continued to have war- related dreams on a regular basis In December 2004, the veteran had a depressed mood but appeared well-groomed. He expressed anger at VA for receiving the 30 percent evaluation. During this time, medics had increased his dosage of Citalopram, which yielded positive results of less anger, increased frustration tolerance and feeling more rested upon awakening. He continued to have sleep problems, but enjoyed the camaraderie of his PTSD support group. The veteran shared that he had taken out his gun two months before, and that a group therapist had advised him to remove the bullets. Also in December 2004, the veteran offered a description of his PTSD symptoms, which the events of September 11, 2001 had heightened, which included nightmares and flashbacks, insomnia, difficulty concentrating, memory lapses and anger problems with almost daily road rage. He stated that he had not been able to hold down a civilian job for longer than five years. January 2005 VA mental health notes indicate that the veteran engaged in weekly PTSD groups. He indicated that he had good holidays and had just purchased a fishing boat. He had a mildly depressed mood, but seemed excited about his new boat. In February 2005 the veteran described having continual sleep difficulties as well as temper problems, manifested by picking fights. He indicated that he had "'been looking for somebody to really hurt me.'" He appeared well-groomed, with a euthymic mood and wide-range affect. The veteran underwent an in-patient PTSD treatment program from March 8, 2005 through April 2005. A May 6, 2005 VA medical record indicates that the veteran felt shaken up by the passing of a fellow veteran and member of his PTSD support group. He described having anger blow- ups, but continued to be involved with a Fishing Buddies program and Vet Center support group. Although he appeared well-groomed and pleasant, the veteran was anxious and upset by the death of his friend. Subsequent May 2005 and June 2005 VA medical records indicate that the veteran appeared angry that the media had not mentioned the anniversary of the outbreak of war in Korea. He had a road rage incident recently, where he blew up at his wife. The veteran also described himself as antisocial, but it was also noted that he appeared well-groomed with only a slightly depressed mood. His affect was serious and brooding. He continued to engage in the PTSD support group but had many flashbacks and sleeping disturbances with the impending Memorial Day holiday and war anniversary. As noted in July 2005 VA mental health records, the veteran had anger problems manifested by almost getting into a physical fight with a stranger. He had gone fishing with his daughter at this time, and he had a mildly dysphoric mood. The veteran was aware that he had a short fuse and desired to work on keeping it in check. The veteran conveyed that this time of year was difficult for him, as it contained anniversaries of his time spent in Korea. Intrusive thoughts typically would lift in November. The clinician assessed him as having decreased irritability and improved frustration tolerance with increase in Citalopram. August 2005 VA medical records note that the veteran continued to make good use of therapy, but that he sometimes felt down and had anger problems. He was well-groomed and had a mildly depressed mood, with an initially irritable affect, which dissipated after venting his feelings. He had spent time fishing and camping with his wife, and remarked that he and she were "'ready to quit'" and often wondered why God had not taken them yet. At this time, the veteran had a euthymic mood with consistent affect, improved since last session. He appeared to be working towards looking at a positive side of things as opposed to dwelling on the negative. He continued to attend his PTSD support group. In September 2005, the veteran conveyed that he had flashbacks triggered by Hurricane Katrina coverage. He appeared well-groomed with a dysphoric mood and affect. He continued to make good use of his therapeutic resources. As reflected in an early October 2005 VA mental health report, the veteran indicated that he had spent a weekend with his entire family to celebrate a birthday. His mood at this time seemed upbeat, showing more insight and spontaneity. A subsequent October 2005 VA medical record reflects that the veteran had a moderately down mood, with constricted affect, and initial irritability. He continued to attend his PTSD group therapy. November 2005 VA mental health reports indicate that the veteran had disrupted sleep and nightmares. He reported having memories of his time in Korea, and he appeared well- groomed with euthymic mood with wide-ranging affect. He continued his PTSD support group. An early December 2005 VA mental health record discloses that the veteran had had a bad few days, with increased depression, flashbacks of Korea and intrusive memories. He appeared well-groomed, but melancholy and depressed at this time. According to a subsequent December 2005 VA mental health note, the veteran appeared well-groomed, with a mildly depressed mood. As reflected in numerous January 2006 VA mental health notes, the veteran explained that he had discontinued using amitriptyline a week ago as he felt that he experienced "electric jolts" and hallucinations of seeing an individual who appeared to be Korean. He reported having no such experiences since discontinuing said medications. One examiner observed that the veteran appeared neatly dressed, with a euthymic mood, with recent hallucinations, and continual poor sleep problems. Another clinician indicated that the veteran appeared fidgety and anxious. Also in January 2006, L.M., a licensed clinical social worker (LCSW), described the veteran's PTSD symptoms as severe. Events since September 11, 2001 and Hurricane Katrina had exacerbated his symptoms, and he had frequent intrusive memories of war-related traumas. He experienced flashbacks, hypervigilance, nightmares, and attempted to avoid triggers and reminders of war. The veteran struggled with anger dyscontrol and experienced frequent road rage. During one incident, the veteran's wife reportedly had to hang on his arm to prevent him from attacking the other driver. The veteran also tried to volunteer at a convalescent center, but quit after experiencing difficulty with a staff member; he feared that he would lose control of his anger and hurt someone. In his January 2006 substantive appeal, the veteran indicated that he had suicidal ideation, and that he had attempted to take his life in the 1970s and again a year earlier in 2005. He described feeling emotionally numb and noted that he had received a GAF score of 44 during his in-patient PTSD program (history obtained from veteran). A February 2006 VA mental health note discloses that the veteran appeared angry and irritable with a mildly depressed mood. His affect improved once he had the chance to vent his frustrations to the clinician. Also in February 2006, the veteran submitted a statement, where he indicated his belief that he should receive a 70 percent rating for his PTSD. He cited to his GAF score of 44 (again this was history obtained from the veteran) and significant impairment of social functioning and ability to work. March 2006 VA mental health notes disclose that the veteran had increased symptoms of depression and hopelessness. He attended a weekly elders group, and he noted that his sleep had improved since restarting his amitriptyline and trazadone medication. The veteran had discontinued the medication because he believed that it caused him to experience hallucinations of seeing someone who looked Korean sitting across from him. The clinicians assessed the veteran as having increased PTSD nightmares, flashbacks and chronic pain with a mood decline and irritable affect. A May 2006 VA mental health note conveys that the veteran felt depressed, but had less nightmares. He appeared dysphoric with congruent affect. A June 2006 VA mental health note discloses that the veteran stated that he had good days and bad days, but that currently, he was having a good day. The clinician assessed the veteran as having a depressed mood, and the veteran's wife indicated that the veteran had lost weight and experienced interrupted sleep. In September 2007 the veteran underwent a VA examination. The clinician reviewed the claims file, and noted that the veteran had retired in 1988 due to heart problems. The veteran reported attending PTSD support groups and being involved with a Fishing Buddies program, although he had quit the latter due to impatience with the children he supervised. He had been married for 58 years and had four daughters to whom he felt close. At this time the veteran reported having nightmares and flashbacks as well as intrusive thoughts. He was hypervigilant, irritable and had sleeping difficulties. Although he currently reported no suicidal ideation, the examiner noted that the veteran's medical records had documented such a history. A mental status examination revealed a well-groomed individual with spontaneous speech and orientation as to time, place, person and purpose. He exhibited logical and goal-directed thought, and he had no signs of hallucinations, delusions or preoccupations. He displayed attention and concentration within normal limits, but experienced significant difficulties with memory task. The veteran had an agitated affect, and dysphoric mood. Based on these data, the clinician diagnosed the veteran with chronic, moderate to severe PTSD and major depressive disorder. He assigned a GAF score of 55, and noted that the veteran had anger problems and social withdrawal. A September 2007 statement by the veteran's friend, K.S., denotes his impression that the veteran had severe PTSD. K.S. had attended weekly PTSD therapy sessions conducted by L.M., LCSW. b. Discussion The Board determines that the evidence preponderates in favor of a 50 percent rating, but no more than 50 percent from February 28, 2003 through August 1, 2003. In particular, the veteran reported having anger problems as well as anxiety, depression, and difficulty communicating with others, all of which manifestations preponderate in favor of an increased evaluation to 50 percent. The veteran's GAF score of 41, assigned in May 2003, which reflects serious symptoms, to include serious impairment of social or occupational functioning, is also consistent with such a higher evaluation. The Board determines that the evidence for this time period does not weigh in favor of assigning increased evaluations of 70 percent or 100 percent, as the veteran at this time did not exhibit symptomatology consistent with those ratings. That is, the medical reports spanning March 2003 through July 2003 do not reflect that the veteran had perceptual distortions, abnormal thought process or speech, an inability to perform activities of daily living, memory loss of names of close relatives or self, obsessional rituals that would interfere with routine activities, or spatial disorientation, as would typify these evaluations. Instead, during this time period, the veteran partook in volunteer activities and family events, and continued to appear well- groomed. As such, the Board determines that the evidence weighs in favor of an increased rating to 50 percent, and only 50 percent, from February 28, 2003 through August 1, 2003. The Board additionally finds that the evidence weighs against an increased rating in excess of 30 percent from August 2, 2003 through November 21, 2004. Specifically, although the veteran had a depressed mood and anxiety during this time, he appeared well-groomed, alert and oriented, and exhibited coherent and goal-directed thought and speech without signs of delusion, psychotic symptoms or memory impairment. He also partook in social programs, such as Fishing Buddies, and reported having social support from his family. The August 2, 2003 VA clinician, who thoroughly reviewed the veteran's claims file, also offered her impression that the veteran had "mild" PTSD, and her assigned GAF score of 75, representing slight impairment in social or occupational functioning, or the presence of only transient symptoms, is reflective of this assessment. Such evidence aligns most closely with, at most, a 30 percent evaluation and preponderates against higher ratings of 50 percent or more, which typically involve such symptoms as circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment and impaired abstract thinking; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech, spatial disorientation, neglect of personal appearance and hygiene; gross impairment in thought processes or communication; and persistent delusions or hallucinations. While the Board acknowledges that the veteran had a single report of suicidal ideation in September 2004, this incident appears to have become resolved during the this period, as reflected in a subsequent September 2004 VA medical record where he indicated that he had no other suicidal thoughts, an October 2004 VA medical report where the veteran seemed generally more "upbeat," and a November 8, 2004 VA medical record, when he conveyed that he was feeling well by way of a "thumbs up" gesture. Overall therefore, and in light of the total disability picture for the period between August 2, 2003 through November 21, 2004, the evidence weighs against assignment of an evaluation in excess of 30 percent. The Board further determines that the evidence weighs in favor of an increased rating to 50 percent, but no more than 50 percent, from November 22, 2004 through March 7, 2005. During this time, the veteran exhibited such symptoms as increased antsy behavior, depression, memory lapses, anger issues, road rage, picking fights and reduced ability to concentrate, which preponderates in favor of a 50 percent evaluation. The record does not reflect that the veteran neglected or failed to maintain his personal hygiene, as would typify ratings of 70 percent or 100 percent, nor does it indicate that he had delusions or hallucinations, any disorientation or suicidal ideations, as would characterize these increased ratings. At this time, the veteran had a euthymic mood and wide-ranging affect, which also supports an evaluation of no more than 50 percent. Overall, therefore, the veteran exhibited symptomatology most consistent with a 50 percent evaluation, but no more than 50 percent, from November 22, 2004 through March 7, 2005. Finally, the Board concludes that the evidence weighs against an increased rating in excess of 50 percent from May 1, 2005. In particular, the evidence from this time period reflects that the veteran continued to appear well-groomed and participated in his group therapy sessions, in addition to going on social outings with his family. He had spontaneous speech, logical thought process, as well as attention and concentration within normal limits. At times, namely in July 2005, August 2005, October 2005, his PTSD symptoms seemed to improve and he appeared more up beat to clinicians, and although the veteran continued to have depression, anger and irritability problems throughout this time, VA clinicians in August 2005 and February 2006 noted that he appeared to feel better after having discussed issues that upset him. The veteran also indicated that he had no suicidal ideation as recently as September 2007, and his most recent GAF score of 55, reflects the presence moderate symptoms, such as having conflicts with peers and flat affect. In the Board's view, such evidence most closely aligns with a 50 percent evaluation. While the Board notes that the veteran reported having a hallucination episode on one occasion in January 2006, which could support an increased evaluation, this event apparently became resolved, as he reported no hallucinations thereafter, to include most recently in September 2007. Accordingly, it cannot be said that the veteran has experienced "persistent" hallucinations, as would typify a 100 percent rating. In addition, although the veteran experienced some memory problems in September 2007, and medical reports dated February 2006 and September 2007 indicate that the veteran had "severe" PTSD with continued anger, in light of the overall disability picture and the lack of such symptoms 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, disorientation, neglect of personal appearance and hygiene, an inability to establish and maintain effective relationships, and gross impairment in thought processes or communication, the Board finds that an increased evaluation in excess of 50 percent is not warranted. Extraschedular Ratings As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, whether or not the veteran raised them, including § 3.321(b)(1), which governs extraschedular ratings. See also Hupp v. Nicholson, 21 Vet. App. 342, 355 (2007). The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). There has been no showing by the veteran that his service-connected PTSD has necessitated frequent hospitalizations beyond that contemplated by the rating schedule or has caused a marked interference with employment. In the absence of such factors, the criteria for submission for assignment of an extraschedular rating for his PTSD pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial rating of 50 percent, but no more than 50 percent, for PTSD from February 28, 2003 through August 1, 2003, is granted. An initial or staged rating in excess of 30 percent for PTSD from August 2, 2003 through November 21, 2004, is denied. A staged rating of 50 percent, but no more than 50 percent, for PTSD from November 22, 2004 through March 7, 2005, is granted. An initial or staged rating in excess of 50 percent for PTSD from May 1, 2005 is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs