Citation Nr: 0812862 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-37 969A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to February 11, 2004. 2. Entitlement to an evaluation in excess of 50 percent for PTSD, effective February 11, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from November 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied entitlement to an evaluation in excess of 30 percent for PTSD. The RO later granted an increased rating of 50 percent for PTSD in September 2004, effective February 11, 2004. The veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The veteran was scheduled for a September 2006 RO hearing, but failed to report. The veteran has filed multiple service connection claims that are pending at the RO, including claims for hearing loss, ulcers, tinnitus, shrapnel wound to upper left arm and elbow, skin condition secondary to Agent Orange exposure, and gastrointestinal reaction secondary to PTSD. These matters are referred to the RO. FINDINGS OF FACT 1. The veteran's PTSD symptoms prior to February 11, 2004 are manifested by anxiety, periodic depressive episodes with sleep impairment, anhedonia, decreased energy, motivation, some suicidal ideation, history of homicidal ideation, occasional vague thought-processes, occasional slightly restricted affect, mild impairment in the ability to relate and interact with supervisors and co-workers, mild impairment in the ability to adapt to the stresses common to a normal work environment, including attendance and safety, and a GAF score range of 50 to 70. 2. Effective February 11, 2004, the veteran's PTSD symptoms are manifested by sleep impairment, anxiety with periodic panic attacks and feelings of paranoia, impaired concentration and memory, increased depression with lack of motivation, anhedonia, isolation, slightly restricted affect, some suicidal thoughts, some less frequent attention to hygiene, some problems with impulse control with a fear he might hurt someone, and a GAF score range of 38-65. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD, effective prior to February 11, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for an evaluation of 70 percent, but no higher, for PTSD, effective February 11, 2004, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in February 2005 and July 2005, subsequent to the initial adjudication of the increased rating claim for PTSD. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in supplemental statements of the case dated from November 2005 to January 2008, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. While the notice letters included the general notice criteria for submitting evidence that the PTSD disability was worse, the letters did not notify the veteran of the rating criteria for PTSD or that the veteran should submit evidence of how the PTSD disability affects his daily life or employment. Thus, VA's duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any VCAA notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Id., Vazquez-Flores, 22 Vet. App. at 48. Specifically, the veteran submitted multiple statements addressing how his PTSD affects his employment and daily life. His representative also presented argument on his behalf as to why the veteran is entitled to a 70 percent evaluation for PTSD. The representative is presumed to have basic knowledge of the applicable criteria for the veteran's claim and to have communicated this information to the claimant. See Overton v. Nicholson, 20 Vet. App. 427, 438- 439. These actions by the veteran and his representative indicate actual knowledge of the right to submit additional evidence and of the availability of additional process regarding both the rating criteria for PTSD and the effect of the disability on the veteran's daily life and employment. As actual knowledge of the veteran's procedural rights and the evidence necessary to substantiate the claim have been demonstrated, and the veteran has had a meaningful opportunity to participate in the development of his claim, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the severity of the PTSD disability. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The RO originally granted service connection for anxiety reaction with psychophysiological gastrointestinal reaction in May 1968, assigning a 10 percent evaluation, effective August 11, 1967. In rating decisions dated from August 1968 to August 2002, the RO assigned various disability ratings from 10 percent to 100 percent for anxiety reaction with gastrointestinal disturbances for various periods of time; but the last rating in August 2002 continued a 10 percent rating that was assigned in 1975. In November 2002, the RO granted an increased rating of 30 percent for anxiety reaction with gastrointestinal disturbances, effective January 24, 2002. The veteran filed an increased rating claim for his psychiatric disability in February 2003. The RO changed the psychiatric diagnosis to PTSD in a May 2003 rating decision and denied the claim for an increased rating. In a September 2004 statement of the case, however, the RO granted an increased rating of 50 percent for PTSD, effective February 11, 2004. The veteran has not indicated that he is satisfied with this rating. 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. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4 will be considered, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increased disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. Evaluation also must be 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. The extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. A 30 percent evaluation is to be assigned for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is assigned for 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. A 70 percent evaluation is assigned for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is assigned for 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. Prior to February 11, 2004 Prior to February 11, 2004, the veteran's PTSD is rated as 30 percent disabling. A September 2002 VA mental status examination report shows the veteran was neatly and casually groomed; he made good eye contact and was cooperative. His thoughts were coherent and organized and there was no tangentiality or loosening of associations. His thoughts centered about his symptoms of PTSD; he was relevant and non-delusional. There was no bizarre or psychotic ideation during the interview. He denied recent auditory or visual hallucinations and did not appear to be responding to internal stimuli during the interview. His mood and affect was friendly and cheerful throughout the interview but he became quite anxious while discussing his symptoms. He was cooperative and his affect was appropriate to what was being discussed; he was not tearful. He spoke in a normal rate and tone and his speech was not pressured. He was alert and oriented in all spheres and appeared to be of at least average intelligence. Regarding his short and long-term memory he had no difficulty with either current or past memory. He could remember five figures forward and three backward. He was able to name three out of three items immediately and three items within five minutes. He could recall how President Kennedy died; there were no deficits identified in these areas. He had a good general fund of knowledge and accurately stated that George Bush, Jr. was the current U.S. President. He knew that Sacramento was the capital of California and that Washington, D.C., was the capital of the United States. With regard to concentration and calculation, he could perform serial three's correctly and subtracted 7 from 100 as 93. He could correctly spell the word, "world" both forward and backward and was able to follow the conversation well. When asked to interpret the proverb, "Two heads are better than one," he responded that it meant "two people can think of things better than one." He stated that apples and oranges were both "fruit" and that if he found a lost child in the supermarket he would "take him to the manager." The GAF score was 50. A January 2003 VA mental health progress note shows the veteran experienced periodic depressive episodes with decreased energy, motivation, and "thoughts of not wanting to go on." He denied any history of frank suicidal ideation and reported sleep disturbances in both falling and staying asleep. He presently had no complaints and denied any depressed mood, hopelessness, or helplessness, and was enjoying his retirement and spending time with his wife of 23 years, his biological child, and three adult step-children. He denied a history of manic symptoms, any psychotic symptoms, any ongoing anxiety unrelated to any trigger, or any obsessive-compulsive symptoms. He had been married for 23 years to his second wife; his first marriage ended in the late 1970's and had two biological children; both his wife and their 10-year old child died in car accident. He has one living biological child and three step-children. He retired from management after 32 years in the same business. A March 2003 VA outpatient treatment report shows the veteran denied suicidal and homicidal ideations; he was engaging and cooperative with the interviews. In April 2003, a VA mental status examination report shows the veteran was well-groomed and casually-dressed; he was very pleasant, polite, and cooperative. There were no abnormal movements, psychomotor retardation, or agitation. His speech was of normal rate and rhythm; his mood was "not bad"; his affect was full and reactive. His thought- processes were somewhat vague but overall, linear and goal- directed. There was no evidence of loosening of associations, paranoia, or delusions. He did not appear to be responding to ideas of reference, thought broadcasting, thought insertion, or thought withdrawal. There were no suicidal or homicidal ideations. Insight and judgment were good; when the veteran was asked what he would do if he saw smoke in a movie theater, he responded, "I'd run." He was alert and oriented times four (time, person, place, and reason for this evaluation). He could remember his date of birth and Social Security number. When asked to recall three out of three objects, he could recall three objects in five minutes with prompts. When asked how many quarters were in a dollar, he stated "four." When asked to make change from $5.00 for a $1.35 purchase, he stated "$3.65." When asked the similarities between apples and oranges, he stated they are both fruit; and when asked to interpret the proverb, "Two heads are better than one" he stated "thinking better." He could do serial threes; he was not able to spell the word "world" backwards. His digit span was 5/5 forward. He was able to name the president of the United States and three past presidents. He was able to name the capital city of the United States and complete one-step and three-step commands. The GAF score was 65-70 and in the past, 65-70. Based on the examination, the examiner found the veteran had no impairment in the ability to understand, carry out, and remember simple one or two-step job instructions; no impairment in the ability to complete detailed and complex instructions; mild impairment in the ability to relate to and interact with supervisors, co-workers, and the public; no impairment in the ability to maintain concentration and attention, persistence, and pace; no impairment in the ability to associate with day-to-day work activity, including attendance and safety; mild impairment in the ability to adapt to the stresses common to a normal work environment, including attendance and safety; and no impairment in the ability to maintain regular attendance in the workplace and perform work activities on a consistent basis. A July 2003 VA outpatient treatment report shows the veteran's complaints of general fatigue worsening for the past few weeks. He currently reported that he could not get out of bed all day and then had trouble sleeping at night because he was over-rested from day time sleep. He reported feeling down and depressed more than usual and anhedonia (for instance, he took no pleasure in fishing, when he used to). He reported that he had thoughts of suicide in the last month with no concrete plan, and a history of homicidal ideation, several years ago prior to his retirement; he had thoughts of killing his boss. Afterwards, he began seeing a psychiatrist. The examiner found that the veteran's depression seemed to be worsening lately. An addendum noted that the veteran reported he did not have the means for suicide but wanted to seek help; he contracted to do no harm to self until the walk over to building 10 was made. His GAF score was 60. A later July 2003 VA outpatient treatment report notes the veteran denied any suicidal ideations and fully contracted for safety stating that he had a good support system and loving family. He continued to deny a pervasively depressed mood, hopelessness, or helplessness, and was enjoying his retirement and spending time with his wife of 23 years, his biological child, and three adult step-children. On mental status examination, he was well-groomed and had good attention to overall hygiene. He was alert and oriented times four, calm, and cooperative; he had no autonomic hyperactivity, no psychomotor agitation, and no psychomotor retardation. He smile appropriately and was engaging. For his mood, he stated "I'm doing pretty good." His affect was slightly restricted; he smiled throughout the interview. His thought-processes were linear and goal-directed. His content was appropriate to questions; he denied any suicidal or homicidal ideations, paranoia, hopelessness, helplessness, or guilt. There were no overt delusions elicited; no magical thinking. There were no audio/visual hallucinations. The GAF score was 65. These same findings were reported on follow-up examination in November 2003. These findings do not meet the criteria for the next higher 50 percent rating for PTSD. Overall, the PTSD symptoms prior to February 11, 2004 are manifested by anxiety, periodic depressive episodes with sleep impairment, anhedonia, decreased energy, motivation, and "thoughts of not wanting to go on," some suicidal ideation, history of homicidal ideation, occasional vague thought-processes, occasional slightly restricted affect, mild impairment in the ability to relate to and interact with supervisors and co-workers, and mild impairment in the ability to adapt to the stresses common to a normal work environment, including attendance and safety. The only criteria for a 50 percent evaluation that are met include disturbances of motivation and mood and some difficulty in establishing and maintaining effective work relationships. He also had some thoughts of suicide. His speech was consistently found to be normal and not pressured. He demonstrated no difficulties with current or past memory. His affect was generally appropriate to what was being discussed; and his thought-processes were at worst vague, but otherwise coherent and organized. This is not enough to warrant an increased evaluation. The veteran's GAF score range of 50 to 70 also does support a 50 percent evaluation. According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a GAF score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 41-50 indicates 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). A GAF score of 51-60 represents 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 peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The veteran's GAF score of 50 supports some of the manifestations required to meet the criteria for a higher rating; but the overall disability picture more nearly approximates the criteria for the 30 percent rating assigned. None of the examinations show any severe obsessional rituals or any serious impairment in social, occupational, or school functioning - all of which are listed as examples of the type of traits associated with serious symptoms and GAF scores of 41-50. The GAF score range of 65-70 appears to be more representative of the veteran's overall disability picture. The GAF score is only one of the many criteria used to determine the present level of mental health impairment and does not support a higher rating in this case. The level of PTSD impairment has been relatively stable throughout the appeals period prior to February 11, 2004, or at least has never been worse than what is warranted for a 30 percent rating. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Effective February 11, 2004 The veteran is rated as 50 percent disabled for PTSD effective February 11, 2004. A February 11, 2004 VA progress note shows the veteran reported difficulty sleeping, noting that he took medication for this and depression. He was highly anxious and reported periodic panic attacks. He was easily startled by sound and easily aroused to an angry state. He isolated himself at his work situation before retiring, reporting intrusive thoughts and difficulty concentrating and remembering. He felt detached from others and an inability to express loving feelings. His GAF score was 45-50. A July 2004 VA mental status examination mirrors an evaluation performed in July 2003. The veteran reportedly was well-groomed and had good attention to overall hygiene. He was alert and oriented times four, calm, and cooperative; he had no autonomic hyperactivity, no psychomotor agitation, and no psychomotor retardation. He smile appropriately and was engaging. For his mood, he stated "I'm doing really good." His affect was slightly restricted; he smiled throughout the interview. His thought-processes were linear and goal-directed. His content was appropriate to questions; he denied any suicidal or homicidal ideations, paranoia, hopelessness, helplessness, or guilt. There were no overt delusions elicited; no magical thinking. There were no audio/visual hallucinations. The GAF score was 65. A September 2004 letter from a Vet Center therapist notes that the veteran was being closely followed as he had been complaining about suicidal thoughts with plans. He had currently agreed to sign a contract stating that he would not commit suicide and was working in a group to improve his mood. He currently was talking about his plans for the future and hoped to see his kids get married and know his grandchildren. However, he had problems with increased depression and less sleep. He was isolating more and avoided contact with his friends and relatives. His relationship and activities with his wife had become problematic and decreased due to his lack of motivation. His sex drive was very low and this contributed to the problems he had in marriage. His nightmares increased with night sweats; he avoided family functions and chose to stay home where he felt safe. He kept a knife, baton, and gun near his bed for security. He said it helped him feel better to know he was prepared for the unexpected. Suicidal ideation was currently denied and not a problem. He was strongly advised to give up his gun to his closest friend, especially if he should have strong suicidal ideations. He presented well but admitted to unpredictable mood swings that would drop out of sight for periods of time. In October 2004, a VA outpatient progress note shows the veteran was experiencing significant somnolence, depression, and vague suicidal ideation. He acknowledged some resurgence of PTSD symptoms including hyperstartle and also had been feeling more depressed with difficulties in motivation. He was sleeping poorly now between one and four hours of sleep. He generally exercised daily by bicycling (which he had continued despite more depressed mood) and reported a good, supportive relationship with his wife of 24 years. On mental status examination, there was less attention to grooming and hygiene. He was alert and oriented times four, calm, and cooperative. There was no autonomic hyperactivity, psychomotor agitation or retardation. He smiled appropriately and was engaging. His mood was, "I'm feeling more depressed." Affect was slightly restricted and he appeared more depressed. His thought-processes were linear and goal-directed. His content was appropriate to questions; he denied any suicidal or homicidal ideations, paranoia, hopelessness, helplessness, or guilt. He had complaints of depression and motivation. There were no overt delusions elicited or magical thinking. There were no audio or visual hallucinations. The GAF score was 65. A December 2004 VA outpatient treatment note shows the veteran had improved attention to grooming and hygiene. His mood was described as, "I'm having more nightmares." His affect was slightly restricted; he appeared more anxious that day. Other findings were the same as reported in October 2004. An April 2005 VA outpatient treatment report shows complaints of continued anxiety, sleep disruption, feelings of paranoia, irritability and tension, difficulty concentrating, poor memory, low energy, anhedonia, depression on and off, and passive suicidal ideation. The veteran stated that when he started feeling suicidal he thought about his family and kids and this got him through it. He had never made an attempt on his life, though he felt at times that he was destructive. He generally exercised daily and reported a good, supportive relationship with his wife. On mental status examination, he had good attention to grooming and hygiene. He was alert and oriented times four, and slightly anxious. He had no autonomic hyperactivity, and no psychomotor agitation or retardation. He smile appropriately and was engaging. His mood was described as "I'm having more nightmares." His affect was slightly restricted and he appeared more anxious. His thought processes were linear and goal-directed. His content was appropriate to questions. He had passive suicidal ideation; he denied homicidal ideation. He had mild paranoia (requested to sit facing door). He also had occasional hopelessness, helplessness, and guilt and complained of depression and motivation. He had no overt delusions elicited and no magical thinking. There were no audio visual hallucinations. The GAF score was 65. A June 2005 VA psychiatric examination report shows the veteran was unsure about his future. He stated that he used to enjoy going fishing, camping, and boating, but no longer did these things. He felt detached and estranged from others and claimed that he felt detached from his wife. He claimed that he had poor sleep, was hypervigilant, and always had his back to the wall. He endorsed an exaggerated startle response when he heard noises and helicopters flying overhead. He stated that he last worked as a security guard in 1998 and is retired and that he was having some marital problems at present time. On mental status examination, the veteran was unshaven, pleasant, polite, cooperative, and often laughed nervously throughout the interview. There were no abnormal movements or psychomotor retardation or agitation. His speech was of normal rate and rhythm and his mood was "okay." His affect was slightly nervous but overall, full and reactive. His thought-processes were linear, logical, and goal-directed. There was no evidence of loosening of associations or paranoia or delusions. He did not appear to be responding to, nor was there evidence of, immediate auditory or visual hallucinations. He did not appear to be responding to ideas of reference, thought- broadcasting, or thought-insertion or thought-withdrawal. There were no suicidal or homicidal ideations. Insight and judgment were reasonable; he recognized the need for treatment and had a realistic plan for self-care. When the veteran asked what he would do if he found a stamped addressed envelope, he responded, "I'd put it in the mailbox." He was alert and oriented times four (time, person, place, and reason for this evaluation). He could remember his date of birth and Social Security number. He was able to register three objects; when asked to recall these objects after five minutes, he could recall two out of three objects. When asked how many quarters were in a dollar, he stated "four." When asked to make change from $5.00 for $1.35 purchase, he could not. When asked similarities between a bird and a plane, he stated, they both "fly." When asked to interpret the proverb, "Two heads are better than one," he stated, "two opinions." His concentration was slow but this might be due to educational limitations. He could perform serial 3's from 20 and was able to spell the word "world" backwards. His digit span was 5/5 forward. He was able to name the president of the United States but could not remember Clinton's name. He was able to name the capitol city of California and the governor of California. He also was able to complete one-step and three-step commands. The GAF score was 55. In July 2005, a VA outpatient treatment report notes the veteran described his mood as "good"; his affect was euthymic, happy, and with full range; and his paranoia had improved. He denied being suicidal or homicidal. Otherwise, the report was the same as noted in April 2005. An August 2005 VA outpatient treatment report shows the veteran began to experience significant somnolence, depression, and vague suicidal ideation. The veteran reported that he had good days and bad days and felt much calmer and less irritable overall. He stated that on the bad days he was usually with family and wanted to isolate himself, which might last for three to four days but was not accompanied by hopelessness or suicidality. Mental status examination was the same as reported in July 2005. These same findings were noted through October 2005. A January 2006 VA psychiatric clinic note shows the veteran discussed being able to just "let things go" more and dwelling less on past injustices and guilt. He stated that his mood was better lately; his step-daughter finally moved out and he had the house alone to his wife, which he had been looking forward to. He had been more active working on his boat and motorcycle lately. His visited his son's grave much less; he had been going weekly. He still had restless sleep and nightmares; other than that he felt good overall. On mental status examination, his mood was "better"; his affect as usual was superficially happy with an underlying sadness that was linear and goal-directed. His content was appropriate to questions; he denied suicidal ideation and homicidal ideation. Paranoia was improved. Otherwise, the report was consistent with reports in 2005. A February 2006 VA psychiatric clinic note shows the veteran's affect appeared more genuinely euthymic that day. The examiner found that overall the veteran continued to improve; he had been restoring a bicycle and an old boat getting fishing gear together; he wanted to enjoy life. In March 2006, a VA psychiatric clinic note shows the veteran continued to ruminate about past experiences including Vietnam and later his work stressors. He had an increase in flashbacks and nightmares lately about people that he killed in Vietnam and felt angry that he was put in that situation. He discussed his guilt he felt in doing things for himself; when he started to feel better he relapsed into depression again. He discussed finding things to do that were more productive and thought-provoking for him so that he had less time to ruminate about the past. On mental status examination, his mood was "more depressed." Otherwise, the report was consistent as noted before. A May 2006 VA psychiatric clinic note shows the veteran stated he had been doing well and had been stable since last visit though he continued to have intermittent periods of depression lasting a couple of days at a time. He felt anxious and had been clenching his jaw more and had dental problems. He denied hopelessness or suicidal ideation and had been active around the house taking care of his boat and an old car that he was fixing up. On mental status examination, his mood was "doing okay" and otherwise consistent as reported on previous evaluations. A June 2006 Vet Center letter notes the veteran had a recent history of problems currently affecting the level of functioning. He was undergoing exacerbated problems with low tolerance to frustration and was having problems with impulse control. He found himself reacting with rage to incidental situations and at times saw things in terms of life and death as an outcome. He found himself out of control and was frightened by the level of anger he experienced. He was afraid he would seriously hurt someone and had become overly sensitive to things he perceived, correctly or incorrectly, as an affront to him. His family relationships were much more strained and stressful to him. He was feeling very depressed and isolating more frequently as a way to avoid any stimulus to anger. He had become less trusting of others and hid his anger in humor; but admitted he was on edge all the time. He had very low self-esteem and a poor self-image. He found it hard to find any value in what he did; his visits to group therapy sessions had become more irregular and he confessed that it was difficult to motivate himself to go to therapy. He was sleeping less and using alcohol to cope with his depth of depression and anxiety. He had guilt and feelings of shame for the harm he felt he did to others through his behavior. He was caught in a cycle and found it difficult to change it. He was no longer working due to complications with anger and depression. He had been unemployed since 1998 and continued to have intrusive thoughts of Vietnam, as well as survivor's guilt. His psychiatrist at the VA Medical Center had increased his medication within the last two weeks for his depression and anger. His condition had deteriorated since his last evaluation. His GAF score was 38. A June 2006 VA examination report shows the veteran was alert, cooperative, and appeared his age. He was of average grooming and hygiene; he was clean and neat, not dirty and disheveled. He was pleasant and relaxed, not hostile or fearful. He did not have any bizarre posturing, gait, or mannerisms. He described his mood as "depressed" and appeared depressed; his affect was constricted. He denied suicidal or homicidal ideation or intent. His speech was fluent without pressure or retardation. There were no loose associations, tangentiality, or circumstantiality. He denied during the interview that he was having hallucinations, delusions, schneiderian symptoms, or other psychotic symptoms. There was no psychomotor retardation or psychomotor excitability. He was oriented to person, time, place, and purposes. Recent memory was impaired. He could only remember two of three objects at three and five minutes. Remote memory was intact. He named five of the last five presidents. His immediate recall was impaired; he could only repeat six numbers forward and two numbers backward. His intellect appeared average. He had loss of concentration doing serial threes; he said 20, 17, 14; he lost concentration and incorrectly said 10 and could not go farther. For calculations, he correctly said 2+5 = 7, 7+5 = 12, and incorrectly said 12+13 = 23. There was no bizarreness or personalization. He stated that a dog and a cat were both animals; an apple and orange both grow on trees; a table and chair are made out of wood; and a man's pants and a woman's skirt are made from material. Judgment and insight were fair; if he found a letter on the ground, he would leave it there. If he saw smoke in a movie theater, he would get out. He lived with his wife in a house in San Fernando. He took care of his grooming and hygiene on the average about once a week. He said he used to do it on the average every day, but it had been less frequent for about two years because he said he did not care. His grooming and hygiene that day were average; he was clean and neat, not dirty or disheveled. He had not been shopping for 20 years because he hated being around people and had not cooked for over 20 or 30 years because he did not have the urge. He drove, but stated that a friend brought him to the evaluation because he could not sleep the previous day. His hobby was building model planes and boats; but he said he had not been doing those things for over 30 years because he lost the drive. He saw friends and was not in contact with relatives or family. He related well with the interviewer. When asked how he got along with other people, he said most of his friends he had were mostly his wife's friends but they had befriended him too. He stated that he got too antsy and could not stay around them for too long and that he would rather be alone. He spent the usual day watching television and might go run errands if his wife asked him to. His GAF score was 56. On objective evaluation, he appeared depressed; his affect was constricted; and he had impaired immediate recall, impaired recent memory, and impaired concentration. In July 2006, a VA psychiatric clinic note shows the veteran's affect was restricted and tearful, though superficially happy at times. An August 2006 VA psychiatric resident note shows the veteran continued to struggle with sleep and nightmares and now had more anxiety because he thought he might have grabbed his wife once due to a nightmare and feared it would happen again. He continued to have difficulty falling asleep and sleep was restless. He denied hopelessness, suicidality, or homicidality. He felt more at peace lately, though he struggled to turn off his thoughts. He tended to obsess about guilt, shame, and anger related to Vietnam, his son's death, relationship with his other son, and work experience, etc. Mental status examination in July 2006 and August 2006 was the same as reported before on VA outpatient psychiatric clinical evaluation. Effective February 11, 2004, the veteran's PTSD symptoms are mostly manifested by sleep impairment, anxiety with periodic panic attacks and feelings of paranoia, impaired concentration and memory, increased depression with lack of motivation, anhedonia, isolation, slightly restricted affect, some suicidal thoughts, some less frequent attention to hygiene, and some problems with impulse control with a fear he might hurt someone. He reportedly was not working due to complications with anger and depression and had a GAF score range of 38-65. These findings more closely approximate the criteria for the next higher 70 percent evaluation for PTSD. The examination findings show occupational and social impairment due to symptoms such as suicidal ideation, near continuous panic or depression, impaired impulse control, neglect of personal appearance and hygiene, and difficulty adapting to stressful circumstances. While not all of the criteria for a 70 percent evaluation are met, such as illogical, obscure, or irrelevant speech, inability to function independently, appropriately, or effectively, or spatial disorientation, the veteran meets enough of the criteria to warrant an increased rating. It is important to point out that the symptoms recited in the criteria in the rating schedule 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." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The veteran's GAF score range of 38-65 is divergent, but adds continued support to the assignment of a 70 percent evaluation. A GAF score of 31-40 is defined as some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 51-60 represents 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 peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. The veteran's GAF score of 38 particularly supports the criteria for a 70 percent evaluation. To the extent that the higher GAF scores of 56 and 65 represent more mild and moderate symptoms, all doubt is resolved in the veteran's favor. 38 C.F.R. § 3.102. Though the veteran's impairment is significant, a 100 percent evaluation is not warranted. The veteran is not shown to have total occupational and social impairment. His thought processes was consistently found to be linear, logical, and goal-directed; there was no evidence of loosening of associations or paranoia or delusions; nor was there evidence of, immediate auditory or visual hallucinations. Although he had some suicidal ideation and impaired impulse control, he was not shown to be in persistent danger of hurting himself or others. He also had maintained a relationship with his wife for many years. The level of impairment associated with the veteran's PTSD has been relatively stable throughout the appeals period since February 11, 2004, or at least has never been worse than what is warranted for a 70 percent rating. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) also is not appropriate in this case. Referral under 38 C.F.R. § 3.321(b)(1) is warranted where circumstances are presented that are unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The veteran reportedly retired from working in 1998 after 32 years in management. There was some evidence this retirement was related to symptoms of anger, depression, and difficulty concentrating; but there is no direct evidence of marked interference with employment solely due to his PTSD. An April 2003 VA evaluation found that the veteran's PTSD symptoms caused mild impairment in the ability to relate to and interact with supervisors, co-workers, and the public, and in the ability to adapt to the stresses common to a normal work environment, including attendance and safety. However, the report also noted the veteran had no impairment in the ability to understand, carry out, and remember simple one or two-step job instructions or complete detailed and complex instructions, maintain concentration and attention, persistence, and pace, associate with day-to-day work activity, including attendance and safety, or maintain regular attendance in the workplace and perform work activities on a consistent basis. Additionally, the evidence does not show any frequent periods of hospitalization due to PTSD. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The 30 percent and 70 percent ratings assigned for PTSD under 38 C.F.R. § 4.130, DC 9411 specifically account for any difficulty in establishing and maintaining effective work relationships. The veteran's disability picture is not so unusual or exceptional in nature so as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation. Having reviewed the record with these mandates in mind, there is no basis for further action on this question. Overall, the veteran's PTSD disability picture more nearly approximates the criteria for a 30 percent evaluation, effective prior to February 11, 2004, and a 70 percent rating, but no higher, effective February 11, 2004. ORDER Entitlement to an evaluation in excess of 30 percent for PTSD prior to February 11, 2004 is denied. Entitlement to an evaluation of 70 percent, for PTSD, but no higher, is granted effective February 11, 2004, subject to the rules and payment of monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs