Citation Nr: 1003095	
Decision Date: 01/21/10    Archive Date: 02/01/10

DOCKET NO.  08-16 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent 
for service-connected posttraumatic stress disorder (PTSD).


ATTORNEY FOR THE BOARD

M. Peters, Law Clerk


INTRODUCTION

The Veteran had active duty service from August 1987 to March 
1992.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2007 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO), 
which granted the Veteran service connection for PTSD and 
assigned a 30 percent evaluation effective August 9, 2004. 

FINDING OF FACT

The evidence demonstrates that the Veteran has anxiety and 
depression; a mildly impaired memory; nightmares, intrusive 
thoughts, and flashbacks; sleep impairment; occasional panic 
attacks; hypervigilance with an exaggerated startle reflex; 
and, irritability with argumentative behavior.


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 30 
percent for service-connected PTSD have not been met.  38 
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, 
Diagnostic Code 9411 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans' Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2009)) defines VA's duty to assist a 
claimant in the development of a claim.  VA regulations for 
the implementation of the VCAA are codified as amended at 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).

The notice requirements of the VCAA require VA to notify the 
Veteran of what information or evidence is necessary to 
substantiate the claim; what subset of the necessary 
information or evidence, if any, the claimant is to provide; 
and what subset of the necessary information or evidence, if 
any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009).  
The requirements apply to all five elements of a service 
connection claim: veteran status, existence of a disability, 
a connection between a veteran's service and the disability, 
degree of disability, and effective date of the disability.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA 
notice must be provided to a claimant before the initial 
unfavorable decision on a claim for VA benefits by the agency 
of original jurisdiction (in this case, the RO).  Id.; see 
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  
However, insufficiency in the timing or content of VCAA 
notice is harmless if the errors are not prejudicial to the 
claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 
2004) (VCAA notice errors are reviewed under a prejudicial 
error rule).

In this case, the appeal arises from the initial award of 
service connection for PTSD.  Preadjudication VCAA notice was 
provided in an August 2004 letter which advised the Veteran 
of the evidence needed to establish service connection, as 
well as what information and evidence must be submitted by 
him and what information and evidence will be obtained by VA.  
Subsequent letters advised the Veteran how disability 
evaluations and effective dates are assigned, and the type 
evidence which impacts those determinations.  December 2007 
and August 2008 letters advised the Veteran of the evidence 
needed to substantiate his claim for a higher rating for 
PTSD.  The claim was last adjudicated in May 2008.

Nevertheless, in Dingess, the Court held that in cases in 
which service connection has been granted and an initial 
disability rating and effective date have been assigned, the 
typical service connection claim has been more than 
substantiated, it has been proven, thereby rendering section 
5103(a) notice no longer required because the purpose that 
the notice is intended to serve has been fulfilled.  Dingess, 
19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) 
(2009).  Thus, because the notice that was provided before 
service connection was granted was sufficient, VA's duty to 
notify in this case has been satisfied.  See generally Turk 
v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from 
an original assignment of a disability rating, the claim is 
classified as an original claim, rather than as one for an 
increased rating); see also Shipwash v. Brown, 8 Vet. App. 
218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 
(1999) (establishing that initial appeals of a disability 
rating for a service-connected disability fall under the 
category of "original claims").  

As to the VA's duty to assist, the record reflects that VA 
has made reasonable efforts to obtain relevant records 
adequately identified by the Veteran.  Specifically, the 
information and evidence that have been associated with the 
claims file include Veteran's service treatment records, VA 
treatment records and examination reports, private treatment 
records, and lay statements.  

As discussed above, the VCAA provisions have been considered 
and complied with.  The Veteran was notified and aware of the 
evidence needed to substantiate his claim, the avenues 
through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  The Veteran was an active 
participant in the claims process by submitting evidence and 
argument, as well as presenting for VA examinations.  Thus, 
the Veteran was provided with a meaningful opportunity to 
participate in the claims process and has done so.  Any error 
in the sequence of events or content of the notices is not 
shown to have affected the essential fairness of the 
adjudication or to cause injury to the Veteran.  Therefore, 
any such error is harmless and does not prohibit 
consideration of this matter on the merits.  See Conway, 353 
F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. 
v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule) and are intended to represent the average 
impairment of earning capacity resulting from disability.  38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009).  
Separate diagnostic codes identify the various disabilities.  
Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1.  Other applicable, general policy 
considerations are: interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating 
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2 (2009); resolving any reasonable doubt regarding the 
degree of disability in favor of the claimant, 38 C.F.R. § 
4.3 (2009); where there is a question as to which of two 
evaluations apply, assigning a higher of the two where the 
disability picture more nearly approximates the criteria for 
the next higher rating, 38 C.F.R. § 4.7 (2009); and, 
evaluating functional impairment on the basis of lack of 
usefulness, and the effects of the disability upon the 
person's ordinary activity, 38 C.F.R. § 4.10 (2009).  See 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the claimant has expressed dissatisfaction with the 
assignment of an initial rating following an initial award of 
service connection for that disability, separate ratings can 
be assigned for separate periods of time based on the facts 
found - a practice known as "staged" ratings.  Fenderson v. 
West, 12 Vet. App. 119 (1999).

The Board has reviewed all of the evidence in the Veteran's 
claims file.  Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there is 
no requirement that the evidence submitted by the Veteran or 
obtained on his behalf be discussed in detail.  Rather, the 
Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).

The Veteran contends that he is entitled to a higher initial 
disability rating for PTSD.  Such disability is rated as 30 
percent disabling under 38 C.F.R. § 4.130, Diagnostic 
Code 9411.

Under Diagnostic Code 9411, which is governed by a General 
Rating Formula for Mental Disorders, a 30 percent rating is 
warranted 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).  
38 C.F.R. § 4.130 (2009).

A 50 percent rating is warranted 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.  Id.

A 70 percent rating is warranted 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 work-like 
setting); inability to establish and maintain effective 
relationships.  Id.

A 100 percent rating is warranted 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; inability to perform 
activities of daily living (including maintenance of minimal 
personal hygiene); disorientation to time or place; memory 
loss for names of close relatives, own occupation, or own 
name.  Id.

When evaluating the level of disability from a mental 
disorder, the rating agency will consider the extent of 
social impairment, but shall not assign an evaluation solely 
on the basis of social impairment.  38 C.F.R. § 4.126 (2009).

One factor for consideration is the Global Assessment of 
Functioning (GAF) score, which is a scale reflecting the 
"psychological, social, and occupational functioning in a 
hypothetical continuum of mental health-illness."  Carpenter 
v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition (DSM-
IV)).  A GAF score of 61 to 70 indicates some mild 
symptomatology (e.g., depressed mood and mild insomnia) or 
some difficulty in social, occupational, or school 
functioning (e.g., occasional truancy, or theft within the 
household), but generally functioning pretty well, with some 
meaningful interpersonal relationships.  Scores ranging from 
51 to 60 reflect 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).  
Scores ranging from 41 to 50 reflect 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).  Scores ranging from 31 to 40 reflect 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).  
While the Rating Schedule does indicate that the rating 
agency must be familiar with the DSM-IV, it does not assign 
disability percentages based solely on GAF scores.  See 38 
C.F.R. § 4.130 (2009).

Based on a review of the evidence of record, the Board finds 
that an initial evaluation in excess of 30 percent for the 
Veteran's service-connected PTSD is not warranted.

The Board notes that there is a significant discrepancy 
between the privately-assessed GAF score of 35 in May 2004 
and the VA examiners' GAF assessment 
of 60 in the two VA examinations in May 2007 (one was 
initially a GAF of 50, 
but was changed in an addendum after review of the 
psychological testing).  Throughout the record - and 
specifically in a statement made in May 2007 in support of 
his claim, as well as during both VA examinations and the 
private examination - the Veteran complained of 
symptomatology to include homicidal and suicidal ideations; 
auditory and sensory hallucinations and delusions; severe 
concentration and memory problems; severe estrangement and 
detachment from all social activities and relationships, 
including familial relationships; and frequent panic attacks, 
irritability and angry outbursts.  During both VA 
examinations however, the VA examiners specifically noted the 
Veteran's tendency to overreport his symptomatology.  In 
fact, in the most recent VA examination on May 30, 2007, the 
Veteran was administered several psychological tests.  The 
results of these tests indicated that he was well above the 
cutoff for having a psychological problem, but that the 
validity of these tests were rendered unreliable due to 
symptom overreporting.  The VA examiner specifically 
concluded that the Veteran's Miller Forensic Assessment of 
Symptoms Test (MFAST) score indicated "likely feigning of 
symptoms not typically reported by severely impaired 
psychiatric inpatients."  He further concluded that there 
was "extreme symptom overreporting" by the Veteran and that 
his "[w]ide range of severe psychiatric symptoms [were] not 
displayed or congruent with interview presentation."  The VA 
examiner from the May 15, 2007 VA examination noted the 
Veteran's tendency to "claim maximum symptomatology on 
whatever was asked."  Thus, the Board finds that the 
Veteran's account of his symptomatology to be unreliable, and 
thus, the most likely source of the significantly lower GAF 
score of record.

Additionally, the private examination in May 2004 is 
internally inconsistent and therefore lacks probity.  
Specifically, the private physician notes that the Veteran's 
symptomatology arises from combat experiences in Panama 
between 1987 and 1992.  Service-connection was established 
due to an in-service stressor of witnessing an accidental 
shooting as a medic during a training exercise while in 
Panama, not because of any combat experience during military 
service.  Furthermore, the private physician lists all of the 
Veteran's claimed symptomatology, and then does an 
examination of the Veteran which reads: "Cooperative.  
Normal dress.  Normal speech.  Anxious mood.  Affect 
restricted.  Thought process linear.  No current 
hallucinations or delusions.  No current suicidal or 
homicidal ideation.  Fair attention.  Judgment and insight 
fair."  After this objective examination, the private 
physician rendered a GAF score of 35.  The GAF score assessed 
by the private physician is essentially based on the 
Veteran's subjective report of symptomatology, as the 
objectively examination does not support such a low score.  

Further example of this internal inconsistency is the private 
physician's conclusion that the Veteran is "severely 
compromised" in his ability to sustain social relationships 
and work relationships.  The examiner noted that he 
considered the Veteran permanently disabled.  This conclusion 
is rendered after the private physician specifically noted 
that the Veteran had been married for 15 years, and that he 
was currently working as a welder.  No rationale for such 
opinion was noted, even after objective facts that the 
private physician himself noted would suggest a contrary 
conclusion.  

Given these inconsistencies, as well as the Veteran's 
tendency to significantly over-report his symptomatology, the 
Board places little to no probative weight in the private 
physician's conclusions as to the severity of the Veteran's 
symptomatology.  See Madden v. Gober, 125 F.3d 1477, 1481 
(Fed. Cir. 1997) (the Board is entitled to discount the 
credibility of evidence in light of its own inherent 
characteristics and its relationship with other items of 
evidence). 

Instead, the Board lends great probative weight to the VA 
examiners' opinions from the two VA examinations in May 2007.  
The Board finds that the documented symptomatology, as stated 
above, is not commensurate to a higher evaluation than 
already assigned.  Specifically, the Board notes that the 
Veteran was noted as being depressed, anxious, isolated and 
withdrawn.  However, the Veteran was noted as being married, 
having some interaction with his children, getting along with 
his mother, stepfather and half-sister, and having some 
friends.  Additionally, the Veteran was shown to be a welder 
for several years, and had recently become a forklift driver 
with the same company.  He was noted as not being limited in 
his employment except for sick days.  These findings indicate 
that while he had some limitation to his social and working 
relationships, the Veteran still maintained several 
interpersonal relationships and stable employment.  

Furthermore, the Veteran does not demonstrate impaired 
abstract thinking or circumstantial, circumlocutory or 
stereotyped speech, or difficulty in understanding complex 
commands.  In both VA examinations, the Veteran's thought 
processes were noted as being unremarkable, and the most 
recent examination further elaborated as the Veteran as being 
clear and coherent.  

Moreover, the Veteran's argument articulated in his August 
2007 Notice of Disagreement laid out a clear, coherent, 
lucid, and well-thought out argument as to why he was 
entitled to a higher evaluation than what he was currently 
assigned.  The Veteran cited case law and statutory 
regulations in reference to his arguments.  The Board finds 
that such logical, rationed and articulated argumentation to 
be evidence that the Veteran does not demonstrate impaired 
thought or speech, nor is it evidence that the Veteran lacked 
the ability to understand complex commands.

The Veteran is not objectively shown to have any significant 
impairment of his short-term or long-term memories, or 
concentration problems, as alleged.  The Veteran, during both 
VA examinations, was shown to be oriented to time, place and 
person.  He was able to spell "world" frontwards and 
backwards and do serial 7's.  The Veteran could articulate 
details about himself such as his date of birth, address and 
social security number.  Additionally, the May 15, 2007 VA 
examiner noted that the Veteran was not tangential, nor did 
he have "pressured speech, flight of ideas or loose 
associations.  He communicated well."  The Board finds that 
this is evidence that the Veteran was not demonstrating any 
concentration problems, as he has asserted, and that the 
Veteran's memory is not more than mildly impaired, as noted 
in the VA examinations.

The Veteran further asserts that he has homicidal and 
suicidal ideations, as well as argumentative behavior with 
everyone.  Neither the private physician's opinion nor the 
May 15, 2007, VA examination noted any suicidal or homicidal 
ideations.  However, the Veteran did report suicidal and 
homicidal ideations, particularly as to road rage and dealing 
with people in stores and crowds, during the May 30, 2007, VA 
examination.  He was noted as not having any current plan or 
intention.  However, such report was provided during an 
examination in which exaggeration of symptomatology was noted 
by the examiner.  

Finally, while the most recent VA examiner noted that the 
Veteran complained of panic attacks 2-3 times week, he also 
noted that the Veteran overreported the severity of his 
symptomatology.  Both VA examiners did, however, note that 
the Veteran suffered from panic attacks.  The VA examination 
from May 15, 2007, noted these panic attacks as 
"occasional."  Therefore, the Board finds that since the 
Veteran has a tendency to overreport his symptomatology, 
panic attacks are more likely "occasional" rather than more 
frequently, as the Veteran reported.  

Such occasional panic attacks, along with the other 
symptomatology documented above, such as intrusive thoughts, 
nightmares, flashbacks, irritability and argumentative 
behavior, depression, anxiety, sleep impairment, and mildly 
impaired memory, more nearly approximate the criteria 
associated with the currently-assigned 30 percent evaluation 
throughout the entirety of the appeal period.  See 38 C.F.R. 
§ 4.130, Diagnostic Code 9411; see also Fenderson, supra.

As for the Veteran's specific argument that the private 
physician's opinion should be given greater weight because 
the private physician is the "treating physician," the 
Board notes that such a treating physician rule is not 
subscribed to by VA.  See White v. Principi, 243 F. 3d 1378 
(Fed. Cir. 2001) (the "treating physician" rule is not 
applicable to VA claims).  Additionally, the Veteran 
indicated in both VA examinations that he was not seeing 
anyone for on-going psychiatric treatment for his condition.  
In fact, during the May 15, 2007, VA examination, while he 
noted that he saw the private physician in 2004, he stated 
that he saw the private physician "a couple of times."  
Regardless, as discussed above, the Board considered the 
private physician's opinion amongst the weight of other 
evidence of record, and found that such opinion had internal 
inconsistencies and lacked probative value when compared to 
the VA examinations from May 2007.

Finally, as to the Veteran's argument that he should be 
assigned a higher evaluation on the basis of his GAF scores 
alone, the GAF score is but one factor the Board can 
consider.  The Board considered the GAF scores against the 
weight of the described symptomatology provided by the 
private physician and two VA examiners.  While the Veteran 
places heavy significance on the GAF score of 35, the Board 
has already discussed above why it finds that GAF score to be 
entitled to little, if any, probative value.  Likewise, he 
argues that he has moderate symptomatology based upon the 
assessment of the GAF score of 60.  However, based on the 
objective findings during VA examination and the lack of 
credibility in the Veteran's symptom reporting, the Board 
finds the Veteran's symptomatology more nearly approximate 
the criteria for a 30 percent evaluation, and do not support 
an evaluation in excess thereof.

The Board has also considered whether the Veteran's PTSD 
presents an exceptional or unusual disability picture as to 
render impractical the application of the regular schedular 
standards such that referral to the appropriate officials for 
consideration of an extraschedular rating is warranted.  See 
38 C.F.R. § 3.321(b)(1) (2008); Bagwell v. Brown, 9 Vet. App. 
337, 338-39 (1996).  The threshold factor for extraschedular 
consideration is a finding that the evidence before VA 
presents such an exceptional disability picture that the 
available schedular evaluations for that service-connected 
disability are inadequate.  See Fisher v. Principi, 4 Vet. 
App. 57, 60 (1993) ("[R]ating schedule will apply unless 
there are 'exceptional or unusual' factors which render 
application of the schedule impractical.").  Here, the rating 
criteria reasonably describe the Veteran's disability level 
and symptomatology and provide for consideration of 
additional symptomatology than is currently shown by the 
evidence.  Thus, his disability picture is contemplated by 
the rating schedule, and the assigned schedular evaluation 
is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 
111, 115 (2008).  Consequently, referral for extraschedular 
consideration is not warranted. 

In reaching the above conclusion, the Board has considered 
the applicability of the benefit of the doubt doctrine.  
However, as the preponderance of the evidence is against the 
Veteran's claim, that doctrine is not applicable in the 
instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz 
v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An initial evaluation in excess of 30 percent for service-
connected PTSD is denied.



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


 Department of Veterans Affairs