Citation Nr: 1127591	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  08-05 789	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to a disability rating in excess of 50 percent for post traumatic stress disorder (PTSD).  

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Saira Spicknall, Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1968 to November 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Philadelphia, Pennsylvania Department of Veterans' Affairs (VA) Regional Office (RO), wherein the RO denied entitlement to a disability rating in excess of 30 percent for PTSD and denied entitlement to a TDIU.  The Veteran filed a timely substantive appeal on both issues.  

In a July 2008 rating decision, the RO awarded an increased disability rating for the Veteran's service-connected PTSD and assigned a 50 percent disability rating PTSD, effective April 14, 2006.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The evidence of record demonstrates that the Veteran's PTSD is productive of difficulties ranging from mild to serious and resulting in occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flashbacks; anxiety; depression; irritability; anger; a short violent temper; low frustration tolerance with anger and stress; hyper-reactivity; avoidance; withdrawal; limited symptom panic attack; some evidence of paranoia; affect and mood ranging from appropriate, restricted, constricted, intense, anxious, angry, hostile, blunted, and labile which are mild to moderate in severity; no delusions or psychotic symptoms; no suicidal or homicidal ideation; clear and coherent thought processes with no unusual thought content; good to limited insight and judgment; fair concentration, attention span and memory; intact remote and recent memory; alertness and orientation times three; good logic and reasoning; spontaneous, goal directed, logical, coherent, rapid, not pressured, relevant, and sequential speech at normal rate; the maintenance of adequate family role responsibilities; and engaged and active behavior; Global Assessment of Functioning (GAF) scores have been assigned as high as 70, thereby indicating mild symptoms, and as low as 45, thereby indicating serious symptoms.  


CONCLUSION OF LAW

The criteria for a disability rating in excess of 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130 Diagnostic Code 9411 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2010).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2010).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Prior to the initial adjudication of the Veteran's claim for an increased rating in the August 2006 rating decision, he was provided notice of the VCAA in April 2006.  An additional VCAA letter was sent in September 2008.  The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  The Veteran also received notice in April 2006, January 2008, and September 2008 pertaining to the downstream disability rating and effective date elements of his claim, and was furnished a Statement of the Case in January 2008 with subsequent re-adjudication in a July 2008 Supplemental Statement of the Case.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

The Veteran's actions are also indicative of his actual knowledge of the requirements for substantiating his increased rating claim.  The Veteran has reported his current PTSD symptomatology to VA and to VA physicians, including their affect on his occupation.  Based on this evidence, the Board is satisfied that the Veteran had actual knowledge of what was necessary to substantiate his increased rating claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision.  Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible.  The evidence of record includes Social Security Administration (SSA) private medical records, VA outpatient treatment reports, VA examinations, and statements from the Veteran and his representative.  The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain.  There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal.  Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2010).

Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned.  See 38 C.F.R. § 4.7 (2010).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2010).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  See Powell v, West, 13 Vet. App. 31, 35 (1999).

Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods.

The Veteran has been assigned a 50 percent evaluation for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is evaluated under the general rating formula for mental disorders.  Under this general rating formula, 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; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.  

A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:  suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  See id. 

A 100 percent rating is warranted when 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.  See id.  

One factor for consideration is the Global Assessment of Functioning (GAF) score, which 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 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  A GAF score ranging from 61 to 70 indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, (e.g. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  A GAF score ranging from 51 to 60 indicates 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 peer or coworkers).  A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends), while a GAF score of 31 to 40 indicates 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 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).  See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV).  

While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130 (2010).  Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule.  Rather, they are but one factor to be considered in conjunction with all the other evidence of record.  

Analysis

Veteran has maintained that his service-connected PTSD warrants a disability rating in excess of the 50 percent currently assigned.  

SSA records reflect that the Veteran has been awarded Social Security disability benefits for anxiety related disorders beginning in August 2006 and which were determined to have begun in November 2003.  

In a Request for Employment Information, received in August 2006, the Veteran's employer, Verizon Communication, reported that the Veteran had been employed from February 1973 to November 2003 as a switching equipment tech.  No report of reasons for termination of employment or whether the Veteran was retired on disability were noted by the employer at this time.  

VA outpatient treatment reports from April 2005 to February 2006 reflect that the Veteran received continual psychiatric treatment for his PTSD, including group therapy and medication.  Psychiatric symptoms during this period included:  nightmares; mild to moderate anxiety with some euthymia; mild to moderate depression; mild irritability; all affect adequately managed and improving; no delusions; clear and coherent thoughts; fair to good insight and judgment; no suicidal thoughts or ideation; no homicidal ideation; calm, cooperative, pleasant and personable behavior; alertness and orientation times three; coherent, relevant and goal directed; fair memory and concentration; good logic and reasoning; low frustration tolerance with anger; hyperactivity; and irritability.  A GAF score of 70 was assigned in April 2005.  

In a May 2006 VA examination, the Veteran reported attending outpatient psychiatric care at the Mental Hygiene Clinic at the VA dating back to February 2003, being on medication therapy, and attending group therapy with the psychology service at the VA clinic every two weeks.  He had no past history of inpatient psychiatric treatment.  The Veteran reported opting for early retirement in November 2002 from his job at the phone company and stated that, towards the time of his retirement he felt that he was struggling every day and was so stressed out and had difficulty keeping his emotions stable.  Since his retirement he had not had any other form of employment.  He felt pleased that he was retired and did not have to leave the house on a daily basis to go work and that he got rid of a position where he would be told by someone to do things.  The Veteran reported that he did not seem to get along with his superior at work.  He noted that he had a supportive wife, they got along well, and this was his second marriage.  The Veteran stated that he spent most of his time at home, preferring isolation, although he did household work such as painting, tending the garden, and accompanied his wife to the gym regularly where they both exercised.  He also reported that there were certain occasions where he would help friends finish work at their homes.  The Veteran reported his PTSD symptoms included recurring nightmares, chronic sleep disturbance, excitability, a short violent temper, avoidance of groups except for group therapy with the VA, withdrawal, a lack of trust of others, triggered memories of Vietnam by news coverage of the Iraq war, depression, limited symptom panic attack, and anxiety.  

A mental status examination at this time revealed findings that the Veteran was alert and oriented in three spheres, casually dressed, and had fair to good personal hygiene.  His mood was moderately nervous, affect was mood congruent, and he tended to be fidgety.  The Veteran's speech was rapid and pressured.  The examiner noted that he endorsed nightmares and intrusive recollection of Vietnam events.  The Veteran harbored mild grade depression.  He was reportedly in constant fear with a sense of short lived life span, as his father died at the age of 57 years old, which was his current age.  He had some limited symptoms panic attacks and was suspicious of others approximately to the level of paranoia.  There was no delusional thinking, psychotic symptoms, or auditory or visual hallucinations.  The Veteran denied suicidal thinking.  His remote memory was intact, although he declared his short term memory was slowed and his concentration was poor.  Judgment and insight were fair.  The examiner assigned a GAF score of 55 for the past year and 45 presently.  

VA outpatient treatment reports from May 2006 to September 2007 reflect that the Veteran continued to attend group therapy and receive medication for his PTSD.  During this period, the Veteran's psychiatric symptoms included:  chronic mild to moderate depression; the maintenance of adequate family role responsibilities; mild to moderate anxiety; pronounced hyper-reactivity; low frustration tolerance and anger patterns; irritability; road rage; anger; continuing intrusive recollections, including nightmares; poor sleep; moderately nervous mood; reactive isolation and withdrawal; cooperative and compliant behavior; alertness and orientation times three; spontaneous, goal directed, logical, coherent, rapid, not pressured, relevant, and sequential speech; adequate potential logic and reasoning; broad to restricted affect congruent with mood; no auditory or visual hallucinations; no signs of psychosis; no suicidal or homicidal ideation; good to limited insight; good to impaired judgment; intact remote and recent memory; good personal hygiene; and clear thought processes with no unusual thought content.  GAF scores during this period ranged from 45 to 70.  While the Veteran reported in November 2006 that he had thoughts of suicide, he reported that such thoughts were fleeting and only lasted minutes.  Thereafter, VA treatment reports demonstrate consistent reports of no suicidal or homicidal ideation.  

In a September 2007 SSA function report, the Veteran reported that each day he went to the gym with his wife, after which they went to lunch, doctor's appointments, and grocery shopping.  He then stated he would come home and o got the basement to be alone.  He also reportedly took care of a dog with his wife.  The Veteran stated he had frequent nightmares about Vietnam and would wake up two to three times per evening.  He also reported having trouble with memory, concentration, and handling timed deadlines, stress and pressure.  The Veteran was able to perform household chores a few hours a week such as mowing, laundry, household repairs, vacuuming.  He stated he avoided crowds, gatherings, and social activities and participated but very rarely and never without his wife, who was also the only person he trusted.  The Veteran reported he could not handle stress at all and it made him very angry and lash out, including any change in his routine.  He also stated he must sit with his back to a wall to see a whole room, evaluate the danger level, and what he would do in a danger situation.  Finally, the Veteran reported that he carried a gun at all times and had a gun next to his bed.  

In an October 2007 SSA psychiatric review technique examination, the Veteran was noted to meet the listing for anxiety related disorders.  The examiner found anxiety was the predominant disturbance or anxiety experienced in the attempt to master symptoms, as evidence by recurrent and intrusive recollections of a traumatic experience which are a source of marked distress.  The Veteran's noted functional limitations included a moderate restriction of activities of daily living, marked difficulties in maintaining social functioning, marked difficulties in maintaining concentration, persistence or pace, and no repeated episodes of decompensation.  The Veteran was noted to have no history of psychiatric hospitalization and had been treated at the VA since 2003.  It was also noted that he was in group therapy for combat related PTSD, which was rediagnosed in August 2007.  The Veteran reportedly lived at home with his wife and was extremely dependent upon her for anchoring in the day.  He reported symptoms of intrusive thoughts, nightmares and daily recollections of combat experiences and indicated increasing difficulty to maintain stability prior to leaving his job in 2002.  The Veteran stated that he slept with a loaded gun near his bed.  

VA outpatient treatment reports from September 2007 to June 2008 reflect that the Veteran continued to attend group therapy and receive medication for his PTSD.  During this period, the Veteran's psychiatric symptoms included:  nightmares; flashbacks; very little tolerance for stress; easily frustrated and angry; a restricted affect congruent with mood; alertness and orientation times three; no suicidal or homicidal ideation; good to limited insight and judgment; logical, coherent an sequential speech at normal rate; engaged and active behavior; no auditory or visual hallucinations; neatly groomed presentation; goal directed conversation; forthcoming and spontaneous behavior; no hopelessness or helplessness; no psychotic thinking; poor coping skills; clear and relevant thought process with no unusual thought content; appropriate, intense, anxious, angry, hostile, blunted, and labile affect and mood ranging from mild to moderate; and mildly agitated behavioral disturbance.  The Veteran was assigned a GAF score of 60 during this period.  In June 2008, he also reported that he worked out three to four times a week, he got worried about working with people so he minimized his contact with them, and his only companions were his wife and dog.  

In a May 2008 VA examination, the Veteran reported that he continued to have problems with increasing anger, irritability, and intolerance of even small gatherings of people.  He also attended group therapy on a regular basis, however, he denied any history of psychiatric hospitalizations.  The Veteran reportedly felt extremely uncomfortable among people, even in the hospital, and only felt safe in his own home, but sometimes felt he had to seclude himself to his basement.  He also continued to feel angry and frustrated over extremely trivial and minor issues and experienced frequent episodes of road rage.  The Veteran experienced regular and recurrent flashbacks of combat related memories, nightmares, and sleep disturbance.  He was extremely isolated and withdrawn even from his own family members, including his son and daughter from another marriage, and mainly dealt with others through his wife.  He was independent in his activates of daily living.  

A mental status evaluation revealed that the Veteran was casually and appropriately dressed and appeared his stated age.  He was cooperative and verbal with moderate eye contact.  Speech was of moderate rate, pitch and volume with good clarity.  Affect was constricted but appropriate to the ideation and situation.  Mood was rather tense and anxious but not irritable.  The Veteran was coherent, relevant, and goal directed.  He denied any suicidal or homicidal ideation but did admit to experiencing ongoing anxiety.  He denied auditory or visual hallucinations but admitted to frequent nightmares and flashbacks.  Sensorium was clear.  The Veteran had fair concentration, attention span, and memory.  He was oriented to person, place and time, had a fair fund of knowledge, could solve simple mathematical problems, and was fairly abstract in thinking.  His insight and judgment were fair.  The Veteran was assigned a GAF score of 66.  At this time, the examiner found that the Veteran continued to suffer from signs and symptoms of his PTSD which caused a significant impairment of his social, occupational and interpersonal functioning ever since his return from combat.  

After a careful review of the record, the Board finds that the Veteran's PTSD does not warrant an initial evaluation in excess of 50 percent at any time since the date of claim on April 14, 2006.  The record is absent of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such PTSD symptoms as: suicidal ideation; 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, so as to warrant a 70 percent disability rating.  

Initially the Board notes that the Veteran's current PTSD symptomatology consists of:  nightmares; sleep disturbance; intrusive recollections; flashbacks; anxiety; depression; irritability; anger; a short violent temper; low frustration tolerance with anger and stress; hyper-reactivity; avoidance; withdrawal; limited symptom panic attack; some finding of paranoia; affect and mood ranging from appropriate, restricted, constricted, intense, anxious, angry, hostile, blunted, and labile which are mild to moderate in severity; no delusions or psychotic symptoms; no suicidal or homicidal ideation; clear and coherent thought processes with no unusual thought content; good to limited insight and judgment; fair concentration, attention span and memory; intact remote and recent memory; alertness and orientation times three; good logic and reasoning; spontaneous, goal directed, logical, coherent, rapid, not pressured, relevant, and sequential speech at normal rate; the maintenance of adequate family role responsibilities; and engaged and active behavior.  

In appraising the Veteran's PTSD, he has continued to have difficulty with social withdrawal, isolation, anger, irritability, poor sleep, nightmares, flashbacks, intrusive recollections, impaired judgment and insight, limited symptom panic attack noted on one occasion, and short violent temper.  The Board finds, therefore, that the Veteran's complaints of forcing himself to get out of bed and shower and shave in the morning, social withdrawal, the need to be with his wife at all times for any type of social event, mistrust of others, defensiveness, violent outbreaks of anger, thoughts of suicide, sleep disturbance, memory problems, panic attacks, and a poor outlook on life are credible.  See Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).

The Board acknowledges that the Veteran reported in the February 2008 VA form 9 and in a November 2006 VA outpatient report that he had thoughts of suicide, however, he also reported to a VA physician in November 2006 that such thoughts were fleeting and only lasted minutes and no ideation was ever reported or noted.  In addition, subsequent VA medical records demonstrate consistent reports of no suicidal or homicidal ideation.  The Board also observes the Veteran's reports of social isolation and withdrawal and the May 2008 VA examiner's statements that the signs and symptoms of his PTSD caused a significant impairment of his social, occupational and interpersonal functioning.  The Board finds however, that the evidence of record demonstrates that the Veteran was able to go to the gym with his wife approximately three to four times a week and reported that afterwards they went to lunch, doctor's appointments, and grocery shopping.  Moreover, he has been able to maintain a relationship with his wife and, although rare, he was able to participate in social activities with his wife.  

With respect to his reports of trouble with memory and concentration, the Board finds that the objective mental status evaluations reflect the Veteran's memory and concentration were fair, which are adequately provided for under the 50 percent disability rating.  

The Board also acknowledges the Veteran's reports of carrying a gun at all times, sleeping with a loaded gun, episodes of violent outbursts, and violent temper, however, while the Veteran's outbursts and temper were described as violent, the medical evidence of record does not demonstrate that such outbursts resulted in any impaired impulse control such as unprovoked irritability with periods of violence or any other impaired control of impulse resulting in dangerous behavior so as to warrant a higher rating.  In this regard, the Board finds that VA outpatient treatment reports reflect the Veteran's anger and irritability were reportedly due to his low tolerance of stress and frustration and poor coping skills and no periods of violence had been associated with such.  Moreover, the Veteran has been able to maintain the relationship with his wife and attend continual and regular psychiatric treatment at the VA, including participation in VA group therapy on a biweekly basis, for years without any incidence of periods of violence due to his anger or findings that his anger has caused other such impaired impulse control.  

With respect to the statements made by the Veteran's representative in August 2008 that, as the Veteran was awarded SSA disability benefits and rendered disabled due to an anxiety related disorder which was acknowledge by VA, he should be awarded a 70 percent disability rating for PTSD with a TDIU, the Board points out that the disability benefits awarded by the SSA and those awarded by VA are governed by different provisions.  As such, different criteria and standards must be met for each.  In this case, the Board finds that the Veteran's PTSD symptomatology does not rise to the level warranted a disability rating in excess of 50 percent. 

As such, the Board finds that the criteria considered under the 70 percent disability rating is not demonstrated by the satisfactory lay and medical evidence of record and the Veteran's PTSD symptoms are, in fact, considered and provided for in the criteria for a 50 percent disability rating.  In assigning this disability rating, the Board acknowledges the Veteran's reports that his PTSD symptoms are disabling and notes that the 50 percent rating criteria provides for significant PTSD symptomatology, including impairments in speech, understanding, long and short term memory, judgment, and abstract thinking, as well as difficulty with the establishment or maintenance of effective work and social relationships.  Thus, the Board finds that the Veteran's PTSD more nearly approximates the 50 percent disability rating assigned.

In addition, the Veteran's GAF scores ranged from 45 to 70, thereby indicating mild to serious symptoms, however, inasmuch as the disability ratings are not assigned based solely upon GAF scores, the Board finds it reasonable to conclude that the PTSD symptomatology described in the record fails to more nearly approximate the criteria for a 70 percent rating at any point during the course of the appeal.

All things considered, the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation higher than 50 percent at any time since the date of claim on April 14, 2006.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  That is to say, the Veteran's disability has been no more than 50 percent disabling since that date, so his rating cannot be "staged" because the 50 percent rating represent his greatest level of functional impairment attributable to this condition since that date.  Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The benefit sought on appeal is accordingly denied.

Extraschedular Consideration

Based upon the findings discussed in detail above, and following a full review of the record, the Board determines that the record evidence favors a finding that the Veteran's PTSD should be rated at 50 percent, but no more, from April 14, 2006.  See Hart, 21 Vet. App. 505.  Additionally, the Board finds that at no point since the date of the claim has the disability been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than 50 percent from April 14, 2006, on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. § 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration.  The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment.  This matter was implicitly considered and rejected by the RO.  See Statement of the Case, dated January 2008, citing 38 C.F.R. § 3.321(b)(1).  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

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


REMAND

The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim for TDIU.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010).  

In his claim for TDIU, the Veteran reported that he last worked in November 2003, at which time he became too disabled to work, and that his PTSD prevented him from securing or following any substantially gainful occupation.  

As noted above, an August 2006 Request for Employment Information reflects that the Veteran's employer, Verizon Communication, reported that he had been employed from February 1973 to November 2003 as a switching equipment tech.  At this time, the employer did not specify any reasons for termination of employment or whether the Veteran was retired on disability.  

In a SSA work history report form, the Veteran stated that his PTSD, anxiety, violent temper, depression, hypertension, high cholesterol, and heart inflammation limited his ability to work.  He reported that he was unable to work due to these conditions in November 2003 at which time he stopped working because of his "condition."  

To date, the Veteran has not been afforded a VA examination which provided an opinion regarding the Veteran's employability as due his service-connected condition.  Pursuant to 38 C.F.R. § 4.16(a) if the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. §§ 3.340, 4.16(a) (2010).  In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment.  38 C.F.R. § 4.16(b).

Given this, and seeing that the Veteran currently has one service-connected disability, namely PTSD, rated as 50 percent disabling, and thus, fits within the criteria of 4.16(b), a VA medical opinion should be obtained as to the Veteran's employability.  Thus, the Board determines that remand for consideration of the issue of TDIU under the provisions of 38 C.F.R. § 4.16 (b), is warranted.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should schedule the Veteran for a VA psychiatric examination by an appropriate specialist, to determine the current nature and etiology of his current service-connected PTSD.  The examiner is requested to review all pertinent records associated with the claims file.  The examination report is to contain a notation that the examiner reviewed the claims file.   

a.  The evaluation should consist of all necessary testing.  

b.  The examiner is asked to comment on the degree of severity of PTSD its affect on his employment and activities of daily living.  

c.  The examiner should opine as to whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD, without regard to the Veteran's age or the impact of any nonservice-connected disabilities.  

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the Appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

2.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefit sought is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




______________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs