Citation Nr: 1036635	
Decision Date: 09/28/10    Archive Date: 10/05/10

DOCKET NO.  07-14 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to a rating higher than 30 percent for posttraumatic 
stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tiffany Sykes, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1989 to 
September 1993.

This appeal to the Board of Veterans' Appeals (Board) is from a 
July 2006 rating decision of the Department of Veterans Affairs 
(VA) Regional Office (RO) in Montgomery, Alabama.  

In July 2010, as support for his claim, the Veteran testified at 
a videoconference hearing before the undersigned Veterans Law 
Judge of the Board.  During the hearing the Veteran submitted 
additional evidence and waived his right to have to RO initially 
consider it.  38 C.F.R. §§ 20.800, 20.1304 (2009).


FINDINGS OF FACT

As a result of his PTSD, the Veteran has occupational and social 
impairment with reduced reliability and productivity due to such 
symptoms as difficulty concentrating and comprehending 
information, panic attacks on average once every three months, 
and anxiety, but admittedly no conflict with his coworkers or 
relational problems with his family, and no recent difficulty 
sleeping.


CONCLUSION OF LAW

The criteria are met for a higher 50 percent rating, though no 
greater, for the PTSD.  38 U.S.C.A. §§ 1155, 5107 (West 2009); 38 
C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, 
Diagnostic Code 9411 (2009).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the interest of clarity, the Board will initially discuss 
whether the claim has been properly developed for appellate 
review.  The Board will then address the claim on its underlying 
merits, providing relevant VA case law, regulations and statutory 
provisions, the relevant factual background, and an analysis of 
its decision.

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has 
duties to notify and assist claimants in substantiating claims 
for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 
5126 (West 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2009).

Proper notice from VA must inform the claimant of any information 
and medical or lay evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will obtain and assist the 
claimant in obtaining; and (3) that the claimant is expected to 
provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 
Vet. App. 370 (2002).  

These VCAA notice requirements apply to all five elements of a 
claim, including the downstream disability rating and effective 
date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 
(2007).

Ideally, VCAA notice should be provided prior to an initial 
unfavorable decision on a claim by the RO.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, 
for whatever reason it was not, or the notice provided was 
inadequate, this timing error can be effectively "cured" by 
providing any necessary VCAA notice and then going back and 
readjudicating the claim - such as in a statement of the case 
(SOC) or supplemental SOC (SSOC), such that the intended 


purpose of the notice is not frustrated and the Veteran is given 
an opportunity to participate effectively in the adjudication of 
the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. 
Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 
370, 376 (2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States 
Supreme Court made clear that a reviewing court, in considering 
the rule of prejudicial error, is precluded from applying a 
mandatory presumption of prejudice rather than assessing whether, 
based on the facts of each case, the error was outcome 
determinative.  The Supreme Court rejected the notion that all VA 
notice errors are presumptively prejudicial.  

The Veterans Court initially held in Vazquez-Flores v. Peake, 22 
Vet. App. 37, 48 (2008), that prejudicial deficiencies in the 
timing or content of a VCAA notice can be cured by showing the 
essential fairness of the adjudication will not be affected 
because:  (1) the defect was cured by actual knowledge on the 
part of the claimant ("Actual knowledge is established by 
statements or actions by the claimant or the claimant's 
representative that demonstrates an awareness of what was 
necessary to substantiate his or her claim.") (citing Dalton v. 
Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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.

The Veterans Court further held in Vazquez that, for an 
increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a 
minimum, that VA notify the claimant that, to substantiate a 
claim, the medical or lay evidence must show a worsening or 
increase in severity of the disability and the effect that such 
worsening or increase has on the claimant's employment and daily 
life.  

On appeal, however, in Vazquez-Flores v. Shinseki, 580 F. 3d 1270 
(Fed. Cir. 2009) the Federal Circuit vacated and remanded 
important aspects of the lower Veterans Court's holding.  
Significantly, the Federal Circuit concluded that "the notice 
described in 38 U.S.C. § 5103(a) need not be Veteran specific."  


Similarly, "while a Veteran's 'daily life' evidence might in some 
cases lead to evidence of impairment in earning capacity, the 
statutory scheme does not require such evidence for proper claim 
adjudication."  Thus, the Federal Circuit held, "insofar as the 
notice described by the Veterans Court in Vazquez requires the VA 
to notify a Veteran of alternative diagnostic codes or potential 
"daily life" evidence, we vacate the judgments."  Vazquez, 2009 
WL 2835434, at 10.

In this case, letters satisfying the notice requirements of 
38 C.F.R. § 3.159(b)(1) were sent to the Veteran in April and 
November 2006.  The April 2006 letter was sent prior to initially 
adjudicating his claim in July 2006, the preferred sequence.  The 
letters, especially in combination, informed him of the type of 
evidence required to substantiate his claim for a higher rating 
for his PTSD and of his and VA's respective responsibilities in 
obtaining this supporting evidence.  The letters also complied 
with Dingess by discussing the disability rating and downstream 
effective date elements of his claim.

VA also fulfilled its duty to assist the Veteran by obtaining all 
relevant evidence in support of his claim that is obtainable, and 
therefore appellate review may proceed without prejudicing him.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. 
Brown, 4 Vet. App. 384 (1993).  The RO obtained his 
service treatment records (STRs) and VA treatment records and 
arranged for VA compensation examinations in June 2006 and 
January 2010 to assess the severity of his PTSD.  He also, as 
mentioned, submitted his most recent VA outpatient treatment 
records during his July 2010 hearing.  Since there is sufficient 
evidence, already of record, to fairly decide this claim insofar 
as determining the severity of his PTSD, an additional 
examination is unnecessary.  See Caffrey v. Brown, 6 Vet. App. 
377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); 
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and 
Allday v. Brown, 7 Vet. App. 517, 526 (1995).  Therefore, the 
Board finds that VA has complied with the duty-to-assist 
requirements.  38 U.S.C.A. § 5103A.  



II.  Entitlement to a Rating Higher than 30 Percent for the PTSD

Concerning this claim, the Veteran did not appeal this 30 percent 
rating when initially assigned following the grant of service 
connection in an earlier March 2003 RO decision, so the present 
level of disability due to this condition is the primary concern.  
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, that 
said, the Court has held that, in determining the present level 
of disability for any increased-evaluation claim, the Board must 
consider whether to "stage" the rating.  See Hart v. Mansfield, 
21 Vet. App. 505 (2007).  In other words, where the evidence 
contains factual findings demonstrating distinct time periods in 
which the service-connected disability exhibited diverse symptoms 
meeting the criteria for different ratings during the course of 
the appeal, the assignment of a staged rating would be necessary.  
The relevant temporal focus for adjudicating the level of 
disability of an increased rating claim is from one year before 
the claim was filed, so, here, since March 2005, until VA makes a 
final decision on the claim.  See Hart, supra; See also 38 
U.S.C.A. § 5110(b)(2) (West 2002 and Supp. 2009); 38 C.F.R. § 
3.400(o)(2) (2009).

Disability ratings are determined by applying the criteria set 
forth in VA's Schedule for Rating Disabilities (Rating Schedule), 
which is based on the average impairment of earning capacity.  
Individual disabilities are assigned separate diagnostic codes.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1.  

If there is a question as to which evaluation to apply to the 
Veteran's disability, 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.  When reasonable doubt arises as to the degree of 
disability, this doubt will be resolved in the Veteran's favor.  
38 C.F.R. § 4.3.  

The pertinent regulations do not require that all cases show all 
findings specified by the Rating Schedule, but that findings 
sufficiently characteristic to identify the disease and the 
resulting disability and, above all, coordination of rating with 
impairment of function will be expected in all cases.  38 C.F.R. 
§ 4.21.  


Therefore, the Board has considered the potential application of 
various other provisions of the regulations governing VA 
benefits, irrespective of whether the Veteran raised them, as 
well as the entire history of his disability in reaching its 
decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

As already alluded to, the Veteran initially received a 30 
percent rating for his PTSD in a March 2003 RO decision with an 
initial retroactive effective date of August 12, 2002, the date 
of receipt of his claim.  He filed for an increased rating in 
March 2006, but the RO confirmed and continued this 30 percent 
rating in the July 2006 rating decision at issue in this appeal.  
As will be discussed below, however, the Board finds that the 
evidence supports assigning a higher 50 percent rating for his 
PTSD, though no greater rating.

Mental disorders are evaluated under a general rating formula 
found at 38 C.F.R. § 4.130.  The fourth edition of the American 
Psychiatric Association's Diagnostic and Statistical Manual for 
Mental Disorders (DSM-IV) provides guidance for the nomenclature 
employed in 38 C.F.R. § 4.130.  

When evaluating a mental disorder, the evaluation 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.  38 
C.F.R. § 4.126(a).  Further, when evaluating the level of 
disability from a mental disorder, 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 existing 30 percent rating for his psychiatric 
disorder is under Diagnostic Code 9411, for PTSD.  38 C.F.R. 
§ 4.130.  As provided by the VA Schedule for Rating Disabilities, 
a 30 percent rating requires rating 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).  Id.

The next higher 50 percent rating requires 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.

An even higher 70 percent rating requires 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); and inability to 
establish and maintain effective relationships.  Id.

A 100 percent rating requires 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 
of names of close relatives, own occupation or own name.  Id.

The use of the phrase "such symptoms as," followed by a list of 
examples, provides guidance as to the severity of symptomatology 
contemplated for each rating.  But use of such terminology 
permits consideration of items listed as well as other symptoms 
and contemplates the effect of those symptoms on the claimant's 
social and work situation.  See Mauerhan v. Principi, 16 Vet. 
App. 436 (2002); see also 38 C.F.R. § 4.130.

In determining whether the Veteran meets the criteria for an 
increased rating, the Board must consider whether the Veteran has 
deficiencies in most of the following areas:  work, school, 
family relations, judgment, thinking, and mood.  Bowling 
v. Principi, 15 Vet. App. 1, 11 (2001).  

In evaluating the evidence, the Board also has considered various 
Global Assessment of Functioning (GAF) scores contained in the 
DSM-IV, which clinicians have assigned.  A GAF score is a scaled 
rating reflecting the "psychological, social, and occupational 
functioning on a hypothetical continuum of mental health-
illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996) 
(citing DSM-IV at 32).  An examiner's classification of the level 
of psychiatric impairment at the moment of examination, by words 
or by a GAF score, is to be considered, but it is not 
determinative of the percentage VA disability rating to be 
assigned; the percentage evaluation is to be based on all the 
evidence that bears on occupational and social impairment.  See 
generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (March 31, 1995).

A GAF score of 31-40 indicates "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)."

A GAF score of 41-50 indicates "[s]erious 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)."  
DSM-IV at 46-47.  See 38 C.F.R. § 4.130.

A GAF score of 51-60 indicates "[m]oderate 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)."  Id.  

A GAF score of 61-70 indicates "[s]ome 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."  Id.  

Here, the evidence of record supports assigning a higher rating 
of 50 percent for the Veteran's PTSD based on the symptoms he 
currently exhibits.  38 C.F.R. § 4.7.  In making this 
determination, the Board has reviewed his VA outpatient treatment 
records from May 2005 to February 2007 and March to July 2010; 
the reports of his VA psychiatric examinations for compensation 
purposes from June 2006 and more recently in January 2010; a lay 
statement from his mother submitted in support of his claim; and 
his July 2010 videoconference hearing testimony.

In June 2006, as mentioned, the Veteran had a VA compensation 
examination to assess the severity of his PTSD.  The report notes 
that he was then taking medication and receiving treatment.  The 
symptoms he described included nightmares, flashbacks at least 
once every two weeks, avoidance of people, feeling detached from 
others, crying spells, irritability, difficulty sleeping, 
exaggerated startle response, and hypervigilance.  He denied any 
suicidal or homicidal ideations and did not report any symptoms 
of psychosis or mania.

During the objective mental status portion of that evaluation, 
the examiner specifically observed the Veteran was alert and 
oriented to time, person, place and situation.  He had poor eye 
contact, however, and a slumped-over posture.  Additionally, his 
speech was low and "somewhat monotonous," with an affect that 
appeared flat.  The examiner indicated the seriousness of the 
Veteran's PTSD symptoms did not line up with the traumas that he 
spoke of regarding his military service.  The examiner explained 
that this was because the stressors experienced during the 
Veteran's military service exacerbated what was already present 
and made the PTSD symptoms even worse.  The examiner also 
assigned a GAF score of 50 - which, according to the DSM-IV, is 
indicative of serious symptoms based on the Veteran's "severe 
problems functioning in regards to work and socially."  The 
examiner did note, however, that these problems appeared to have 
been present prior to the Veteran's military service and 
exacerbated his underlying risk factors for symptoms of 
depression and anxiety.  Regardless, this VA examiner determined 
the Veteran's capacity for improvement appeared to be greatly 
limited due to the fact that it is likely his symptoms would get 
worse.  

Also on file for consideration are records dated from May 2005 to 
February 2009 and from March to July 2010 from the VA Medical 
Center (VAMC) in Birmingham, Alabama, where the Veteran receives 
his outpatient treatment for his PTSD.  These treatment records 
indicate his ongoing diagnoses include PTSD with a history of 
depression, anxiety and schizoaffective disorder.  These records 
show his continued use of medication in an attempt to control his 
mental health problems.  In May 2010, he received a GAF score of 
40 - which includes consideration of the combined effects of his 
PTSD and schizoaffective disorder.  As mentioned, according to 
the DSM-IV, a GAF score of 40 indicates he has some impairment in 
reality testing or communication or major impairment in several 
areas, such as work or school, family relations, judgment, 
thinking, or mood.  These VA treatment records do not, however, 
indicate he has either homicidal or suicidal ideations.  

The most recent VA compensation examination was in January 2010, 
so in the interim, during which the examiner acknowledged that he 
did not have the Veteran's claims file but did have copies of his 
VA outpatient treatment records.  The Veteran reported occasional 
social relationships and the leisure activity of watching 
television.  The symptoms he was then currently exhibiting 
included recurrent and intrusive distressing recollections or 
dreams of the event, avoidances, markedly diminished interest or 
participation in significant activities, 
difficulty concentrating, hypervigilance, and feelings of 
detachment or estrangement from others.  On objective mental 
status evaluation, the examiner observed the Veteran was clean, 
neatly groomed, with clear speech, and a cooperative and friendly 
manner.  His affect was normal, but his mood was depressed.  He 
also had good personal hygiene and denied having suicidal or 
homicidal ideations.  



This examiner determined the Veteran has just mild social and 
occupational impairment due to his PTSD and is not exhibiting any 
symptoms of the prior schizoaffective disorder.  This examiner 
also indicated that, with continued treatment, there is a good 
prognosis for improvement in the Veteran's psychiatric condition.  
His GAF score was 61, which, according to the DSM-IV, indicates 
he has mild symptoms or some difficulty in social or occupational 
functioning, but generally functioning pretty well and has some 
meaningful interpersonal relationships.

The Board also has considered a supporting lay statement from the 
Veteran's mother, received in April 2007.  She maintained the 
Veteran is afraid of large crowds, shut himself off from the 
world at one point after he separated from service, has ongoing 
nightmares, has problems staying asleep, and reportedly 
sees monsters.

In his July 2010 hearing testimony, the Veteran alleged that he 
is having problems remembering what he needs to do at work 
(evidencing decreased thinking, concentration and comprehension 
of tasks) and is also experiencing panic attacks about every 3 
months, on average, and anxiety every few months.  As well, 
he stated that he sometimes is fearful of hurting someone for 
"no apparent reason" or even himself.

Based, however, on the objective clinical findings that have been 
reported, there is obvious and wide-spread disagreement over the 
severity of the Veteran's PTSD.  The results of his June 2006 VA 
compensation examination and the VA outpatient treatment records 
from May 2005 to February 2009 and from March to July 2010 
indicate his PTSD is considerably worse than was the conclusion 
of the VA examiner that evaluated him in the interim, in January 
2010.  The January 2010 examiner, however, readily acknowledged 
that he did not have the Veteran's claims file for consideration 
of the entire history of this condition, only copies of 
VA outpatient treatment records.  And, notably, since that 
evaluation occurred in January 2010, the examiner did not have 
the benefit of considering even all of the Veteran's VA 
outpatient treatment records since he has been seen in the 
outpatient mental health clinic additionally during the several 
months since that VA examination.  Indeed, he submitted these 
additional records of his more recent VA outpatient treatment 
during the hearing he has since had in July 2010.

The January 2010 VA examiner also essentially indicated that all 
symptoms associated with the schizoaffective disorder, which, 
unlike the PTSD, is not a service-connected disability, have 
abated.  And, in any event, the medical evidence in the file does 
not differentiate what portion of the Veteran's GAF score is 
specifically attributable to that prior schizoaffective disorder 
versus his PTSD.  So, for all intents and purposes, the Board 
must resolve this doubt in his favor and effectively presume that 
all symptoms are part and parcel of the PTSD.  See Mittleider v. 
West, 11 Vet. App. 181, 182 (1998).

But by the same token, the Veteran often has complained of a 
variety of symptoms that have not been clinically confirmed on 
objective mental status evaluation or, of equal or greater 
significance, he has later denied experiencing.  For example, the 
symptoms he described during his June 2006 VA examination 
included nightmares, flashbacks at least once every two weeks, 
avoidance of people, feeling detached from others, crying spells, 
irritability, difficulty sleeping, exaggerated startle response, 
and hypervigilance.  He described virtually these same symptoms 
during his more recent January 2010 VA examination.  And, yet, 
when testifying under oath during his even more recent July 2010 
hearing, he admitted that he has no conflict with his coworkers 
or problems with his family, in turn suggesting no such 
difficulties in his relationships, and that he sleeps "pretty 
good."  As well, during his hearing he claimed that he sometimes 
is fearful of hurting someone for "no apparent reason" or even 
himself, but he has repeatedly denied any suicidal or homicidal 
ideations - both when examined for VA compensation purposes 
(both times) and even when evaluated and treated on other 
occasions in the VA outpatient mental health clinic.  Moreover, 
the letter from his mother alleges that he is afraid of large 
crowds, shut himself off from the world at one point after he 
separated from service, has ongoing nightmares, has problems 
staying asleep, and reportedly sees monsters.  But, again, he 
denied he has this level of social or relational impairment in 
either his work or family life while testifying under oath during 
his recent July 2010 hearing, and his description of the quality 
of his sleep as "pretty good" also suggest it is far better 
than his mother described.  Also, her claim that he sometimes 
sees monsters is at odds with the findings of the clinicians that 
have evaluated him for VA compensation purposes and treated him 
in the outpatient mental health clinic since they noted he has 
not reported any symptoms of psychosis or mania.  These 
inconsistencies in the reporting of the severity and frequency of 
his symptoms lessens the credibility and resultant probative 
value of their lay testimony.  See Macarubbo v. Gober, 10 Vet. 
App. 388 (1997) (holding that the credibility of lay evidence can 
be affected and even impeached by inconsistent statements, 
internal inconsistency of statements, inconsistency with other 
evidence of record, facial implausibility, bad character, 
interest, bias, 
self-interest, malingering, desire for monetary gain, and witness 
demeanor).

Thus, when considering all of this evidence mentioned in the 
aggregate, according to the GAF scores that have been assigned 
during the last few years, there is a wide discrepancy.  
Summarily speaking, the June 2006 GAF score of 50 indicates the 
Veteran has serious social and occupational impairment; 
the January 2010 GAF score of 61 indicates, instead, that he has 
just some mild symptoms and social and occupational impairment; 
whereas the most recent May 2010 GAF score of only 40 indicates 
there is major social and occupational impairment.  So, on the 
whole, the lower GAF scores of 50 and 40 predominate.  But given 
that the type of symptoms and frequency of them he describes 
often has not been substantiated once examined, a higher 
50 percent rating best approximates the overall severity of the 
PTSD when all reasonable doubt concerning this is resolved in the 
Veteran's favor.  38 C.F.R. §§ 4.3, 4.7.

This 50 percent rating contemplates that he experiences panic 
attacks of the frequency and severity he described during his 
recent July 2010 hearing.  This higher rating also takes into 
account that he has difficulty in understanding complex commands, 
impairment of short- and long-term memory (e.g., forgetting to 
complete tasks), and impaired abstract thinking, so the type of 
difficulties at his job that he also testified concerning during 
his hearing.  As well, this higher rating concedes there are 
disturbances in his motivation and mood, so accounts for the 
exacerbation of his PTSD and consequent underlying risk factors 
for associated depression and anxiety.

The Veteran's PTSD does not, however, warrant an even higher 70 
percent rating, much less a 100 percent rating, because he does 
not have occupational and social impairment with deficiencies in 
most areas.  As mentioned, has repeatedly denied having any 
suicidal or homicidal ideations - the letter from his mother 
notwithstanding and except for his July 2010 hearing testimony 
that he wanted to hurt someone for no apparent reason.  There 
also are no credible indications of obsessional rituals 
interfering with routine activities, speech intermittently 
illogical, obscure, or irrelevant, near-continuous panic or 
depression (as opposed to just occasional) 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 
inability to establish and maintain effective relationships 
(as opposed to merely perhaps having some difficulty in doing 
this).  To the contrary, overall, the examiners found his thought 
processes were intact, and that he had no delusions, 
hallucinations, disorientation, or inability to perform the 
activities of daily living.  So, overall, his PTSD does not rise 
to the level of social and occupational impairment required of 
these even higher ratings.

Accordingly, the Board finds that the medical and lay evidence 
supports a higher rating of 50 percent for the Veteran's PTSD, 
though no greater rating.  38 C.F.R. § 4.130, DC 9411.  His 
condition has never been more than 50-percent disabling since one 
year prior to filing his current claim for a higher rating, 
so there is no basis to "stage" this rating under Hart.

Extra-Schedular Consideration

There also is no evidence of exceptional or unusual circumstances 
to warrant referring this case for extra-schedular consideration.  
38 C.F.R. § 3.321(b)(1) (2009).  See also Thun v. Peake, 22 Vet. 
App. 111 (2008).  The Board finds no evidence that the Veteran's 
PTSD has markedly interfered with his ability to work, meaning 
above and beyond that contemplated by his now higher 50 percent 
rating.  


According to 38 C.F.R. § 4.1, generally, the degrees of 
disability specified in the Rating Schedule 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.  Indeed, in Van Hoose v. Brown, 
4 Vet. App. 361, 363 (1993), the Court reiterated this, noting 
the disability rating, itself, is recognition that industrial 
capabilities are impaired.

Furthermore, there is no evidence of any other exceptional or 
unusual circumstances, such as frequent hospitalizations, 
suggesting the Veteran is not adequately compensated for this 
disability by the regular rating schedule.  His evaluation and 
treatment has been primarily - if not exclusively, 
on an outpatient basis, not as an inpatient, much less a frequent 
inpatient.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); 
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 
Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

A higher 50 percent rating for the PTSD is granted, subject to 
the statutes and regulations governing the payment of VA 
compensation.



____________________________________________
KEITH W. ALLEN 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs