Citation Nr: 1120879	
Decision Date: 05/31/11    Archive Date: 06/06/11

DOCKET NO.  07-37 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and a family member


ATTORNEY FOR THE BOARD

P. Childers, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from October 1966 to October 1968, and from December 1990 to May 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted, in pertinent part, service connection for PTSD and assigned a rating of 50 percent effective April 13, 2005.

In March 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Waco, Texas.  A transcript of the hearing is in the claims file.


FINDING OF FACT

The Veteran's PTSD has not been productive of occupational and social impairment due to such symptoms as obsessional rituals which interfere with routine activities; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; inability to establish and maintain effective relationships; gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name at any time during the appeal period.


CONCLUSION OF LAW

The criteria for a disability evaluation in excess of 50 percent for PTSD have not been met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In a claim for increase, the VCAA notice requirements are 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.  

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided pre-adjudication VCAA notice by a letter, dated in May 2005, on the underlying claim of service connection for PTSD.  Where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  

Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating.  Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).  

Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claims.

Service treatment records (STRs) and VA treatment records have been associated with the claims file.  Social Security and private medical records have also been obtained and are in the claims file.  In addition, the Veteran testified before the undersigned Veterans Law Judge regarding his claim for a higher initial rating for his service-connected PTSD.  

The Veteran was also accorded C&P examinations in September 2006, July 2008, and July 2009; the reports of which are in the claims file.  The Board has reviewed the examination reports and finds that they are adequate for a decision in this matter because they were based on thorough mental examinations; review of the Veteran's pertinent history; consideration of the Veteran's subjective complaints, including all of the complaints identified by the Veteran during his 2011 Board hearing; and review of the claims file.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  

Although the Veteran suggested at the conclusion of his 2011 Board hearing that his PTSD may have worsened since his 2009 examination, his reported occupational and social functioning during the 2011 Board hearing was the same as he had reported during his 2008 and 2009 examinations; and the symptoms he described during his 2011 Board hearing were the same in kind and severity as those he reported during his prior examinations.  Remand for a new examination is therefore not warranted.  

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.  

REASONS AND BASES FOR FINDING AND CONCLUSION

Facts

In a rating decision dated in February 2007 the RO granted service connection for PTSD and assigned an evaluation of 50 percent effective April 13, 2005.  The Veteran appealed the assigned rating for his service-connected PTSD, which has been evaluated under the provisions of Diagnostic Code 9411 throughout the appeal period.  38 C.F.R. § 4.130.

Relevant medical evidence includes VA and private psychiatric treatment records dating from May 2006, which show treatment for PTSD symptoms of stress, panic attacks, anxiety, irritability, depressed mood, hypervigilance, feelings of detachment from others, disturbed sleep, flashbacks, and outbursts of anger.  

On VA examination in September 2006, the Veteran reported that he was retired from a 30 year post-service career as a firefighter.  He reported that he was married; and that he had been married to the same woman, off and on, since 1965.  He reported that his marital breakups were caused by his drinking and infidelity, and said that he used to drink heavily and get into fights.  He reported that he also lived with his two adopted grandchildren.  He reported that he did not socialize much, but did attend veterans meetings, including POW and MIA meetings, and had a longtime friend who was a fellow firefighter and Vietnam Veteran.  The examiner succinctly put it as follows: 

for 20 years this [age] Vietnam [V]eteran was a drunken violent womanizer with a steady job.  Since he quit drinking 10 years ago, his marriage has become relatively stable but he still has intrusive memories, poor sleep, a quick temper and thoughts of violent behavior.  He avoids crowds and has no close friends outside of other veterans.

On mental status examination, the Veteran was well groomed, appropriately dressed, alert, verbal, and cooperative.  Speech was well modulated and non pressured, and thoughts were logical, linear, appropriate, and well connected to the topic of discussion.  Delusions were absent but the Veteran had trouble trusting most people.  The Veteran denied any hallucinations since sobriety.  Long and short term memory was good.  Affect was restricted and anxiety and panic symptoms were present, as were neurovegetative symptoms of depression, such as disturbed sleep and anhedonia.   Judgment was good and insight was fair, but impulse control was poor.  The GAF score was 55, which the examiner noted was reflective of moderate to serious symptoms including restricted affect, panic, few friends, and conflicts with peers and family.  The examiner added that the Veteran had lost the ability to work closely with others; interact appropriately with family and friends; and enjoy recreational activities.

VA medical records dating from 2007 chronicle treatment for PTSD, with GAF scores as follows:
			GAF							GAF
March 2011		  57 & 65			February 2010  	  57 & 60
February 2011	  57				January 2010  	  57
January 2011		  57				December 2009	  57
February 2011	  57				September 2009	  57
December 2010  	  57				August 2009		  50
November 2010  	  57				July 2009		  50 & 55
October 2010  	  57				June 2009		  55
September 2010  	  55 & 57			April 2009		  55
August 2010  	  57				May 2009	  	55
July 2010  		  60				February 2009	  45 & 55
June 2010  		  55 & 57			January 2009		  60
May 2010  		  57				May 2007		  55
April 2010  		  60

In a Medical Assessment dated in January 2008 a private social worker documented the Veteran as reporting that he was a loner and was easily angered.  The Veteran also reported that he was forgetful and had difficulty sustaining his concentration and staying on task if interrupted several times.  He also complained of recurrent depression; anxiety attacks; recurrent memories of the dead and destruction; avoidant symptoms, including isolation; arousal symptoms, including nightmares; heightened sensitivity to his environment, including sensory illusions in his periphery vision; and occasional spatial disorientation.  Mental status examination found thoughts to be logical and sequential, and no evidence of hallucinations, delusions, psychosis, or thought disorder.  Cognitive functioning was in the high average range, and insight and judgment for normal events was good.  Language was clear, well modulated, and flowed well.  The social worker then stated that the Veteran's GAF was not over 35.

In a letter dated in April 2008 an acquaintance wrote that he had met the Veteran at an Alcoholics Anonymous meeting in 1977.  He wrote that the Veteran was unfriendly; skeptical of everyone and everything; and had a volatile temper.  He added that he had seen the Veteran have extreme mood swings.

In a letter dated in July 2008 a private counselor wrote that she had been treating the Veteran since December 2007.  She wrote that the Veteran was making good progress identifying triggers for his symptoms, but continued to have difficulty with nightmares, exaggerated startle response, overwhelmed feelings, anxiety, and anhedonia.

On VA examination in July 2008, the Veteran reported that he was in group and individual psychotherapy, and on medication for his PTSD symptoms.  He reported that he was married for the third time to the same woman; that his relationship with her was fair; and that he had a history of domestic violence secondary to alcohol use.  He also reported having one "real good friend;" and said that he was involved in a few veterans groups and had taken some veterans to the meetings.  During the examination he complained of sleep disturbances, difficulty concentrating, anger, irritable outbursts, hypervigilance, and an exaggerated startle response.  The examiner noted that the Veteran was casually dressed in disheveled clothes.

On mental status examination, the Veteran was cooperative, friendly, and oriented, but restless and tense.  Affect was appropriate, and speech was unremarkable.  Thought processes and judgment were also unremarkable, and there were no delusions or hallucinations.  Remote, recent, and immediate memory was within normal limits.  The examiner also noted that there was no inappropriate or obsessive/ritualistic behavior, and no suicidal or homicidal ideation.  Impulse control was fair, and the Veteran was easily distracted.  According to the examiner, the degree of severity of the Veteran's PTSD symptoms was mild.  Axis I diagnosis was "PTSD, mild to moderate, chronic; Pain Disorder Associated with both Psychological Factors and a General Medical Condition; Alcohol Dependence self reported to be in full sustained remission."  Axis II diagnosis was personality disorder, not otherwise specified.  The GAF score was 60.  The examiner explained that "while there are signs and symptoms of PTSD, there are comorbid disorders which also negatively impact upon the [V]eteran's cognitive and psychosocial functioning."  She added that the Veteran's severe personality disorder is independently responsible for impairment in psychosocial adjustment and a lowered quality of life.  She also stated that the Veteran's pain disorder is independently responsible for impairment in his quality of life and results in impairment in psychosocial adjustment making him more irritable and unable to concentrate when he is in pain.  She then averred that the Veteran's PTSD was not productive of total occupational and social impairment or reduced reliability and productivity, but would cause occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

In a letter dated in April 2009 a private psychologist wrote that he had been seeing the Veteran for nearly a month.  He wrote that the Veteran's nightmares had greatly increased since his evaluation by the private social worker.  He added that the Veteran's "flood of emotions" included uncontrolled crying spells with night sweats and an increase in his vital signs with an overwhelming sense of insecurity and doom, and visual hallucinatory problems.  He also remarked that the Veteran was isolative and forgetful "with a major increase in his depressive and anxiety issues," and averred that the Veteran's GAF was "around 40 to 45."

In a letter dated in May 2009 a private psychiatrist from the same office as the April 2009 psychologist wrote that the had been under his care since March 2009; that the Veteran had PTSD directly related to his military service; that the Veteran suffered from "significant impairment and disability in both social and occupational functioning"; and that the Veteran was unable to seek or maintain gainful employment.

In July 2009 the Veteran was accorded another C&P PTSD examination.  He reported that he was married and had been for 32 years.  He also reported that he was retired from the fire department; that he had last worked as a trucker in 2008; and that he was on Social Security disability because of orthopædic problems.  During the examination he complained of anxiety, panic attacks, depression, insomnia, increased appetite, crying spells, anhedonia, nightmares, anger, poor short term memory, and some suicidal and homicidal thoughts, which he averred were not serious.  The examiner noted that the evidence included a January 2008 letter from a private social worker and an April 2009 letter from a psychiatric psychologist, and noted the symptoms described, and GAF scores assigned, by those providers. 

On mental status examination, the Veteran was anxious and somewhat hyperactive.  Thought processes were logical, coherent and relevant, and the Veteran was articulate, cooperative, well oriented, verbal, well dressed, and well groomed.  Affect was one of excitation; speech was well understood.  Reasoning was good, and he exhibited no psychomotor slowing or agitation.  Verbal comprehension was good, as was concentration.  Axis I diagnosis was PTSD, and Axis II diagnosis was bipolar disorder.  The GAF score was 55.  The examiner noted that the Veteran had threatened to kill his family in the past, but averred that this was "certainly not the product of post-traumatic stress disorder."  The examiner added as follows:   

This individual's condition is certainly no worse than [when examined] in 2006 and certainly no worse than his current rating of 50%.  It is this examiner's opinion that a great deal of this individual's problems have to do with his poor impulse control and unstable mood characterized by a diagnosis of bipolar disorder.  His post-traumatic stress disorder in [t]his examiner's opinion is a separate issue.  This individual had to be prompted in order to give high-ranking symptoms of post-traumatic stress disorder including intrusive thoughts, startle symptoms and nightmares.  His main symptoms identified in this interview have to do with depression and anger control problems as well as an aversion to crowds.

In March 2011 the Veteran testified that he had retired from the fire department and from the Air Force Reserves in or around 1997.  He further testified that he was married and had been married, though not continuously, to the same woman since 1965; and that his household included a couple of grandchildren.  He testified that his relationships with his family members was impaired; that he had threatened to kill himself and his family members during a storm a few years back; that he sometimes forgot to write down checks that he wrote; that he took medication for a mood disorder; that he had nightmares/problems sleeping; that he suffered from anxiety and panic attacks; and that he vigilantly "check[ed] the doors because of the grandkids."  He also testified that he did not socialize much since he had retired.  The Veteran's son testified that the Veteran had been lying around the house since his retirement, and seemed depressed.

Rating Principles

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. §§ 3.102, 4.3, 4.7.  

When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination.  It is the responsibility of the rating specialist to interpret reports of examination in the 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 present.  38 C.F.R. §§ 4.2, 4.126.

Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder.  See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV).  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 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995).  A GAF score of 71-80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors, and result in no more than slight impairment in social, occupational, or school functioning.  DSM-IV GAF scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships.  Id.  Scores between 51 to 60 are indicative of 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).  Id.  GAF scores between 41 to 50 reflect 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).  Id.  Scores between 31 to 40 range indicate 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).  Id.  

Under the provisions of Diagnostic Code 9411, a 50 percent rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411 (as in effect since November 6, 1996).  A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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.  The highest rating of 100 percent evaluation is not warranted unless there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id.

Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).   

The evidence considered in determining the level of impairment from PTSD is not restricted to the criteria under the General Rating Formula for Mental Disorder.  Instead, VA must consider all symptoms that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV), of the American Psychiatric Association, pertaining to the diagnosis of PTSD.

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

Analysis

The evidence shows that the Veteran has symptomatology that is associated with the criteria under the General Rating Formula for Mental Disorders and symptoms associated with the diagnosis of PTSD under DSM-IV, which is referred to in 38 C.F.R. Part 4, § 4.130 (rating mental disorders), as well as symptoms associated with other unrelated psychiatric disorders.  All of the Veteran's symptoms as pertains to the service-connected PTSD (previously noted with alocohol and drug abuse) are considered in this analysis.  38 C.F.R. § 4.14 (2010) (the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation...is to be avoided).   See Mittleider v. West, 11 Vet. App. 181 (1998) (unless the symptoms and/or degree of impairment due to a veteran's service- connected psychiatric disability can be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim).

When interpreted in light of the whole recorded history and reconciling the various reports into a consistent picture (see 38 C.F.R. § 4.2), the Board finds that the evidence portrays a consistent pattern of occupational and social impairment with reduced reliability and productivity throughout the appeal period due to such symptoms as anxiety and panic attacks; memory impairment; disturbances of motivation and mood, including depression; and difficulty in establishing and maintaining social relationships.  This finding is buttressed by an average or typical GAF throughout the appeal period of 57, which is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), and moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Id.  

The Board notes that the evidence includes a GAF score of 35, 40, and 45, but finds that notwithstanding these brief lows in the Veteran's overall functioning, the evidence portrays a consistent GAF of at least 50.  See 38 C.F.R. § 4.2. (providing that it is the responsibility of the rating specialist to interpret examination reports in the 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 present).  For instance, PTSD treatment records dated prior to the private social worker's January 2008 assessment of a GAF of 35 show a GAF of 55; and a C&P PTSD examination a few months later in July 2008 found the Veteran with a GAF of 55.  In addition, in April 2009 the private psychologist assessed a GAF of 40; however, VA treatment providers found the Veteran with a GAF of 55 during that same time period.  In any event, three lone GAF scores below 50, when contrasted against no less than thirty GAF scores of 50 or better during the same timeframe, does not constitute an approximate balance of negative and positive evidence.  Accordingly, a grant in favor of the Veteran is not warranted.  38 C.F.R. § 4.3.  Moreover, those private reports do not account for the psychological effects from disorders other than PTSD, and as such, are of low probative value.  See e.g. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a medical opinion based upon an inaccurate factual premise is not probative).

In contrast, the VA medical examinations, opinions and GAF scores distinguish the effects from the various sources of symptoms.  For example, the VA examiner in July 2008 provided extensive explanation regarding the comorbid disorders affecting the Veteran's functioning.  That examiner went on to elaborate on, and make conclusions about, only the results of PTSD.  The VA examiner in July 2009 similarly was able to distinguish PTSD symptoms from the manifestations of other mental health problems.  Based on the very thorough nature of the examination reports, they are of high probative value.  

In reviewing the PTSD symptoms, the Board finds no evidence of the kinds of symptoms that would warrant a rating of 70 percent or higher at any time during the appeal period.  Mauerhan v. Principi, 16 Vet. App. 436 (2002) (The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings).  Although the Veteran does admit to occasional thoughts of suicide and has expressed concern that he may hurt others, these thoughts are not persistent, and there is no plan or intent.  In addition, while the Veteran says that he is hypervigilant, which he describes as checking the locks on the doors at night, this ritual does not interfere with his routine activities.  Moreover, while reportedly reclusive, easily agitated, angered, and "moody," there is no complete inability to establish and maintain effective relationships since the Veteran, by his own testimony, is involved with family members and in veterans groups, and has at least one close friend.  See, e.g., May 2007 PTSD treatment record.  There is also no report or evidence of intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting his ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; gross impairment in thought processes, judgment, or communication; inability to perform activities of daily living (including maintenance of minimal personal hygiene); or memory loss for names of closes relatives, own occupation, or own name at any time during the appeal period.  Accordingly, for the reasons just expounded, the Board finds that the criteria for a rating of 70 percent or higher for PTSD are not met at any time during the appeal.  38 C.F.R. §§ 3.102, 4.130, 4.132 Diagnostic Code 9411.  

The Board further finds that a staged rating is not warranted since the Veteran's symptoms have not met the criteria for a higher rating on a sustained basis during the appeal period.  Hart, 21 Vet. App. 505.

Extraschedular Consideration 

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disabilities with the established criteria.

If the criteria reasonably describe the disability levels and symptomatology, then the disability pictures are contemplated by the Rating Schedule, and the assigned schedular ratings are therefore adequate and referral for extraschedular ratings is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 2009 WL 2096205 (Fed. Cir. July 17, 2009).

The Board finds that the rating criteria reasonably describe the Veteran's symptomatology.  In other words, the Veteran does not have any symptomatology not already contemplated by the General Rating Formula for Mental Disorders or by DSM-IV.  As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). 


TDIU consideration

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id. 

In this case, the Veteran does not allege, and the evidence does not show, that he is unable to work solely due to his PTSD.  On the contrary, the Veteran reports that he retired from his jobs and receives Social Security disability compensation because of a knee disorder; and the 2008 C&P examiner specifically noted that the Veteran's symptoms "are intermittent and would not clinically prevent him from mentally functioning in an occupational setting."  Although a private psychologist in 2009 stated that the Veteran was unable to seek or maintain employment, he did not state that this was due solely to the Veteran's PTSD; and the Board notes the 2008 C&P examiner's remarks that the Veteran's other disorders, including a pain disorder, adversely affect his psychological functioning and have a serious impact on his occupational and social functioning.  As there is no allegation or evidence that the Veteran is unable to work based solely on his PTSD, the Board finds that a claim for TDIU in this claim for an increased rating is not raised by the record.  



ORDER

An initial disability rating in excess of 50 percent for PTSD is denied.




____________________________________________
M. Sabulsky
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs