Citation Nr: 1007184 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-03 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from June 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned a 30 percent disability rating, effective from July 31, 2006. By September 2007 rating decision, the RO granted a 50 percent rating for PTSD, effective from July 31, 2006. By January 2008 rating decision, the RO granted a 70 percent rating for PTSD, effective from July 31, 2006. The Veteran has continued his appeal for an even higher rating for his service-connected PTSD. In June 2009, the Veteran and his wife testified via telephone before the undersigned Veterans Law Judge. The Board also notes that in June 2009, the Veteran indicated that he wished to withdraw his appeal for service connection for a stomach condition, and his appeals for increased ratings for right shoulder impingement, peripheral neuropathy of the right leg and the left leg. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. § 20.202. As the Veteran has withdrawn his appeals regarding these four issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. FINDING OF FACT The competent and probative medical evidence of record demonstrates that the Veteran's service-connected PTSD has been characterized by social and occupational impairment with deficiencies in most areas, including work, family relations, judgment, and mood, due to intrusive thoughts, sleep disturbance, nightmares, concentration problems, depression, panic symptoms, suicidal thoughts, some recent memory impairment, hypervigilance, irritability, anger, hypervigilance, anxious mood, flat affect, suicidal thoughts, low energy and poor motivation, and feelings of detachment and distance from others. He is oriented to time and place and has good judgment and insight. He does not exhibit gross, or any, impairment in speech or thought process of communication, and he has never been shown to have grossly inappropriate behavior. Although there is subjective evidence of hallucinations, the preponderance of the objective evidence does not reflect that the Veteran experiences persistent hallucinations or delusions. Although the Veteran has reported having suicidal thoughts and a plan, the preponderance of the evidence does not show he is in persistent danger of hurting himself. Although the Veteran reported he has poor hygiene, the preponderance of the evidence of record shows he has been shown to have good hygiene on examination, and is able to perform some of his own activities of daily living. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for service-connected PTSD have not been met at any point since July 31, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the United States Supreme Court (Supreme Court) has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of a decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in June 2007, September 2008, and January 2009, that fully addressed the notice elements in this matter. These letters informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that the RO sent the Veteran several letters, including in June 2007, September 2008, and January 2009, advising him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained his VA treatment records, and VA has provided three VA examination to assess the severity of his PTSD. The Board finds that the VA examinations in November 2006, July 2007, and September 2008 are adequate. The VA examinations in 2007 and 2008 included a review of the claims folder, and all three VA examinations included a history obtained from the Veteran. Detailed examination findings were reported, along with diagnoses and opinions, which were supported in the record. The examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). In addition, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background On VA examination in November 2006, the Veteran reported he was seen for individual counseling and had participated in group psychotherapy meetings for six months, which he felt he benefitted from. With regard to PTSD symptoms, he reported having daily intrusive recollections and nightmares of Vietnam. He had not experienced a flashback in years. He tried to avoid thoughts and feelings of Vietnam, but had limited success. He described a wide range of interests, although his physical limitations prevented him from pursuing these. He felt profoundly detached from others since Vietnam and complained of chronic emotional numbness. He had passive thoughts of suicide but reported he had much to live for and look forward to. He was undergoing extensive medical and neuropsychological evaluation to determine what may be contributing to his poor functioning at home. He seldom left home, except to go to medical appointments, and while his wife was working, he was considered to be unsafe in kitchen activities and in ambulation. The examiner noted that the preliminary results of the neuropsychological evaluation suggest that the Veteran's concentration and attention problems have a primarily psychiatric basis, and further suggested that the Veteran's combination of pain-killing medications and alcohol contributes to cognitive problems. He had difficult falling and remaining asleep, extreme irritability, concentration problems, hypervigilance, a startle response, and survivor guilt - all attributed to his service in Vietnam. The diagnoses included PTSD, moderate, related to both Vietnam and his medical problems. A Global Assessment of Functioning (GAF) score of 50 was assigned. On VA examination in July 2007, the Veteran reported that since his last examination he was consistently seeing mental health professionals and had been on meds, and while he felt positive about the treatment providers, he did not feel the medications had helped him. He reported having panic symptoms daily to weekly, and felt depressed everyday throughout the day. He had low energy, poor motivation, loss of pleasure in activities, concentration problems, suicidal thoughts, poor sleep, and feelings of hopelessness, worthlessness, and guilt. He had been married 10 years and had three stepchildren, and reported that his relationship with his wife and two of his stepchildren was doing well. He had been divorced twice and had two children from his first marriage with whom he had good relationships. He talked to one son three times a week and talked to his son from Alaska once a month. He reported having one close friend who he talked to once a week. He spent his time napping, feeling frustrated about the stuff he could not do, and spent his time sitting and staring for several hours. He had no history of violence. On objective examination he appeared clean and casually dressed, and was restless and tense. His speech and thought process and content were unremarkable, and he was cooperative toward the examiner. His affect was flat, and mood was anxious and depressed. He was easily distracted and had a short attention span. He was oriented to person, time, and place. He reported auditory hallucinations, but no delusions. He understood the outcome of his behavior, and understood he had a problem. He had problems sleeping because of nightmares. He had no inappropriate or obsessive/ritualistic behavior. He reported having panic symptoms daily to weekly. He had ongoing thoughts of killing Asians and avoided going anywhere he might see Asian people. He had suicidal thoughts and once a week wished he would die, but had no plan. He had good impulse control. He was able to maintain minimal personal hygiene and had some problems with his activities of daily living. He had normal remote and immediate memory, but his recent memory was moderately impaired. He indicated he worked as a supervisor for Excel energy, and had been medically retired due to cancer. He had been unemployed for five to ten years. He claimed his unemployment was due to the mental disorder's effects, and claimed he became severely depressed and angry after he had cancer and had been since. The diagnoses included PTSD with depression and panic. A GAF score of 45 was assigned. The examiner opined that there was not total occupational and social impairment due to the Veteran's PTSD, and that PTSD caused deficiencies in the Veteran's judgment, family relations, work, and mood. In that regard, it was noted that the Veteran had discord with his extended family, and that at work he had difficulty with concentration and focus. He also reported feeling sad, hopeless, and with nothing to look forward to, and was afraid about his future and his health. On VA examination in September 2008, the Veteran reported his counselor had left and he was trying to get reestablished with a psychiatrist. He took anti-depressant and anti- anxiety medications which helped him. In general he was moody, and had periods, three to four times a week, when he was down and depressed for a few hours or days, which usually occurred at specific times during the year due to anniversary dates from Vietnam or with changes of the season and because of his physical decline. He reported that his energy was down, but that this was likely due to physical problems. He felt useless due to not being able to do much physical work and struggled with self-worth. He had hope for the future and did find some enjoyment in daily activities. His sleep was disturbed and he woke up often due to nightmares and/or pain. He had suicidal thoughts in the past, the last time being a week ago, but denied ever having plan or intent and described the thoughts as passive. He struggled with depression of a mild to moderate degree. He had been married for twelve years, and reported the relationship was going well. He had a good relationship with one son and a more distant one with the other son. He reported he seemed to have "divorced" himself, was distant from others, and had a hard time getting involved with social activities. But he did report having several friends that he spent time with. He enjoyed golfing, and used to love to fly, hunt, fish, and jog, but could no longer do these activities due to his physical health. He did enjoy fishing off one deck, and attended organizational activities on the lake. On the VA objective examination in September 2008, the Veteran was found to be neatly groomed and appropriately dressed. His speech was spontaneous, and he was cooperative, friendly, and attentive toward the examiner. His affect was appropriate and his mood was dysphoric. His orientation was intact to person and place, but not to time (he reported the date was September 18, 2008, when it was actually September 17, 2008). His thought process was unremarkable. He had suicidal ideation, but no delusions or hallucinations. He had average intelligence, and his judgment and insight were good - he understood the outcome of behavior and understood he had a problem. He had no inappropriate or obsessive/ritualistic behavior. He had panic attacks which occurred due to Vietnam memories. He had no homicidal thoughts, and had good impulse control. He had problems performing his activities of daily living, primarily due to physical problems. He no longer cooked because he was leaving the burner on. His remote memory was normal, but his recent and immediate memory were moderately impaired. He often forgot what he was wanting to do in mid-action. His PTSD symptoms were chronic and included reexperiencing traumatic events from Vietnam through nightmares and intrusive memories. He felt distant and detached from others. He had a restricted range of affect and sleep disturbance nearly ever night. His concentration was poor and he lost focus easily. He watched behind his back and was aware of his surroundings. He became agitated and would isolate. He retired in 1998 due to cancer, because he could not perform his job duties any longer. He had worked as an instruction supervisor at a power company for 15 years. The diagnosis was PTSD, chronic, moderate, with secondary depression. A GAF score of 55 was assigned. The examiner indicated that the Veteran's prognosis was fair as he had been actively involved in mental health treatment and the intensity was milder in nature. The examiner also indicated that the Veteran did not have total occupational and social impairment due to PTSD, but did have deficiencies in several areas, including thinking, family relations, and mood. Finally, the examiner noted that as a result of mental health symptoms, the Veteran's motivation was poor, he often wanted to stay in bed, and his energy was lacking, and that this affected his reliability and productivity to participate in social activities, family relationships, and daily functioning. In June 2009, the Veteran testified that he had thoughts of suicide, and that he did have a plan. He indicated that if "the plan would go through, I guess I would carry it out by use of a firearm". He testified he got angry very easily and had a short fuse. He also testified that this was his third wife and he got along very well with her, but that was not the case in his second marriage. He reported nightmares and memory loss, and that he would forget words while talking. He had problems reading long books or novels, and that if he had to remember something he read it over and over or his wife read it to him. He testified he had hallucinations of the faces and voices of his friends from Vietnam who have passed away. He described his hygiene as "fairly gross" and testified that his wife maintained his hygiene. He had some friends, but did not feel he was an equal person and it was tough for him to gain friendship and trust people. His wife testified that his cognitive thinking was impaired and that he had mood swings. She testified that he had forgotten their grandchildren's names, and had nightmares to the point where they could not sleep together because he had hit her while sleeping. She helped the Veteran with bathing, dressing, taking medications, and going to appointments. She indicated the Veteran was able to drive downtown and get back home, which was only about four or five blocks, but not any farther or he would get lost. The Veteran testified that on an average day he woke up early and went to an old man coffee clutch that consisted of three other disabled veterans. After that, he stayed home and spent the day either with his wife in their backyard or in the house. He testified that his sons called to check up on him, but that he did not visit with his sisters and brothers. III. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran's PTSD has been evaluated as 70 percent disabling, effective from July 31, 2006, pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under that code, a 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 31 to 40 is defined as denoting some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 is defined as indicating 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). See Carpenter v. Brown, 8 Vet. App. 240, 242- 244 (1995). The Board notes that the Veteran has been rated as 100 percent disabled due to his various service-connected disabilities, for compensation purposes, since January 2006. The Board will now consider whether the Veteran is entitled to a 100 percent schedular disability rating for his PTSD alone. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an initial evaluation in excess of 70 percent is warranted for the Veteran's service-connected PTSD. The evidence does not show symptoms that more nearly approximate the criteria for a 100 percent evaluation. The record reflects that GAF scores have ranged from 40 (in VA treatment records dated in 2007) to 55 (on the recent VA examination in 2008). A review of the record shows that the Veteran's service- connected PTSD is manifested by intrusive thoughts, sleep disturbance, nightmares, concentration problems, depression, panic symptoms, suicidal thoughts, some recent memory impairment, hypervigilance, irritability, anger, and hypervigilance. His mood has been variously described as depressed, anxious, and dysphoric. His affect has been variously described as flat and appropriate. He has reported ongoing suicidal thoughts and ideation, but has consistently denied any plan (in both VA treatment records and on VA examinations), but did recently testify that he did have a plan for suicide. He mostly denied hallucinations and delusions, but has reported having auditory hallucinations as well as seeing the faces of men he was in Vietnam with. He reports that he isolates, has low energy and poor motivation, has loss of pleasure in activities, has feelings of hopelessness, worthlessness, and guilt, and spends most of his time at home alone. He reported feeling detached and distant from others, having a hard time getting involved in social activities, and that he did not have contact with his siblings. Nevertheless, there is evidence that the Veteran enjoys golfing, and is involved in some social activities, including a daily coffee clutch with other veterans. He has a few friends that he keeps in contact with. He also reported having a good relationship with his current wife of over 12 years, and that he had a good relationship with his two sons and two of his stepchildren. His insight and judgment have been found to be good. The evidence consistently shows that the Veteran is oriented, with no speech or thought problems, and his psychomotor activities are normal, with no usual behavior noted. With respect to the specifically enumerated symptomatology contemplated for the 100 percent evaluation under DC 9411, review of the record shows the Veteran is alert and oriented in all spheres, including time and place, and that he has had no problems with his thought processes or communication. He has not exhibited any inappropriate behavior. On one occasion only (the most recent VA examination) his orientation to time was questioned, as he gave the date as one day later than it actually was. With regard to the Veteran's hygiene, the preponderance of the evidence shows while he does have impairment in his ability to attend to his activities of daily living, this is primarily due to his physical problems. VA treatment records and the VA examinations have consistently shown him to have good hygiene. The record reflects that the Veteran recently testified that he does not maintain his hygiene, and that his wife takes care of that for him. The Board notes that this has been accounted for in the current assignment of a 70 percent rating in that while the Veteran has experienced problems with his activities of daily living, primarily due to physical problems, the evidence of record has not shown any hygiene problems observed on objective examination. While the Veteran has reported having hallucinations, he has mostly denied hallucinations and delusions, and therefore, the preponderance of the evidence is against finding that the Veteran experiences persistent hallucinations or delusions as contemplated by the 100 percent disability rating. The Veteran and his wife have noted his problems with recent memory and being absentminded, but his remote and immediate memory are intact, and there has been no report that he had memory loss for his own occupation or name; however his wife did testify he forgot the names of their grandchildren. As to thought content, the Veteran has generally denied having homicidal thoughts, except on one occasion he reported he had ongoing thoughts of killing Asians, but he was not found to have a history of violence or impulse control problems. With regard to suicide, the Board notes that the Veteran has had ongoing thoughts of suicide, but has indicated he would not follow through. While he recently testified he had a plan, the preponderance of the evidence of record does not show he has been in persistent danger of hurting himself. With regard to occupational impairment, the Board notes that on the VA examinations the examiner specifically opined that the Veteran did not have total occupational impairment due to his PTSD. Indeed, the record reflects he was retired due to cancer. While it is clear the Veteran's PTSD would affect his ability to work, whether through poor concentration or otherwise, the record does not show that his PTSD totally impairs his ability to work. The Board therefore concludes that the preponderance of the evidentiary record is against the presence of several of the symptoms contemplated in the criteria for a 100 percent disability rating. Based on the foregoing, the Board finds that the Veteran's occupational and social impairment more nearly approximates the occupational and social impairment contemplated in the criteria for a 70 percent evaluation, as he clearly demonstrates occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, and mood. As a result, the Board finds that the Veteran's service-connected PTSD is manifested by severe, but not total, occupational and social impairment, and warrants no more than a 70 percent disability evaluation under DC 9411 throughout the appeal period. With regard to the Veteran's recent testimony, the Board acknowledges that the Veteran is competent to testify as to his current symptoms of PTSD, including having a plan for suicide, poor hygiene (but for his wife), and hallucinations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran 's subjective report of experiencing hallucinations, having poor hygiene, and of having a plan for suicide is considered less probative than the lack of contemporaneously recorded complaints made to medical professionals, especially during mental health examination. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the preponderance of the evidence reflects the Veteran is able to perform some activities of daily living, he is oriented to place and time, and his immediate and remote memory are intact. The Board is aware that the symptoms listed under the 100 percent disability rating are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms, or all of the symptoms, to warrant a 100 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, as explained above, the record does not show the Veteran manifested symptoms of the severity to equal or more nearly approximate the criteria for a 100 percent evaluation. While the evidence tends to show moderate to significant occupational and social impairment, total impairment is not shown, as the Veteran has maintained his marriage for 12, reports having a good relationship with his children, and that he retired due to physical problems. Finally, the Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected PTSD; however, upon reviewing the longitudinal record in this case, we find that, at no time since the filing of the Veteran's claim for service connection (on July 31, 2006) has his service-connected PTSD been more disabling than as currently rated. Fenderson v. West, supra. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a rating in excess of 70 percent for PTSD must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration In addition, the Board notes that the Veteran's disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra- schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In the present case, the Veteran reported he worked at a power plant for 15 years, and that he was medically retired years ago due to cancer, which hampered his ability to perform his duties. He has also reported that his service- connected PTSD affects his ability to work, claiming that he had difficulty with concentrating and focusing at work. Here, as explained above, the rating criteria for the Veteran's service-connected PTSD, reasonably describe the Veteran's disability level and symptomatology, and provide for a greater evaluation for more severe symptoms. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Additionally, there is no indication the Veteran has been frequently hospitalized due to his PTSD. Therefore, referral for the assignment of an extraschedular disability rating is not warranted in this matter. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs