Citation Nr: 1304474	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  09-15 528A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Kenneth L. LaVan, Attorney


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by a regional office (RO) of the Department of Veterans Affairs (VA) that granted service connection for PTSD with an evaluation of 50 percent effective January 17, 2008.  A notice of disagreement was received in August 2008, a statement of the case was issued in May 2009, and a substantive appeal was received in May 2009.  An interim August 2010 rating decision increased the PTSD rating to 70 percent, effective January17, 2008.  The Veteran requested and was scheduled for a Board hearing September 2012.  He cancelled the hearing request in August 2012.  In November 2012 additional evidence was received and a letter from the Veteran's attorney with a waiver of preliminary RO review of such evidence.

In a November 2012 letter, the Veteran's representative argues that a higher rating should be assigned effective from a date in 2005.  However, the Veteran did not file a timely notice of disagreement as to the effective date of January 17, 2008, for the grant of service connection.  His notice of disagreement received in August 2008 only reflects his belief that a higher disability evaluation should have been assigned.  The United States Court of Appeals for Veterans Claims (Court) has made it clear that there can be no freestanding claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C.A. § 7105.  Rudd v. Nicholson, 20 Vet.App. 296 (2006).  In other words, applicable law afforded the Veteran a one year period after notice of the decision to appeal from the effective date assigned by that decision.  Since the Veteran did not file a timely notice of disagreement to initiate an appeal, the finality of the effective date precludes an attempt to now claim an earlier effective date on grounds other than clear and unmistakable error.  

The matter of entitlement to special monthly compensation based upon the need for aid and attendance was also raised by the Veteran's representative in the November 2012 letter.  This claim has not been adjudicated by the RO in the first instance.  Therefore, the Board does not have jurisdiction over this issue and it is referred to the RO for appropriate action.  


FINDING OF FACT

The evidence reflects that the Veteran's service-connected PTSD has been productive of a disability picture generally characterized by occupational and social impairment, with deficiencies in most areas; the evidence shows that the pathology does not more nearly approximate a disability picture featuring total occupational and social impairment; the Veteran's PTSD disability picture does not more nearly approximate 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 relative, own occupation or own name..


CONCLUSION OF LAW

The criteria for entitlement to a disability rating in excess of 70 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Duty to Notify

The record shows that in A February 2008 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal.  The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Id.; Charles v. Principi, 16 Vet. App. 370 (2002).  The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  In this case, the RO provided VCAA notice to the Veteran in February 2008, which was prior to the July 2008 rating decision.  Accordingly, the requirements the Court set out in Pelegrini have been satisfied.

Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection.  The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal.

The Board also stresses that since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in February 2008), another VCAA notice is not required.  VAOPGCPREC 8-2003 (Dec. 22, 2003).  It appears that the Court has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself.  See Dingess, 19 Vet. App. at 491.

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The Board notes that it has reviewed the evidence of record, to include the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal, and VA and private treatment records.  The Veteran was afforded VA examinations in July 2008 and July 2010.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant.

Law and Regulations

The Veteran claims entitlement to assignment of an increased initial disability rating for his service-connected PTSD.  He essentially contends that this disability has been more severely disabling than the assigned rating reflects.

The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including the Virtual VA electronic claims file), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  The Board notes that review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal aside from what is discussed in this decision.

Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

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).  Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged' ratings."  Id. at 126.

Under the criteria for PTSD (set forth at 38 C.F.R. § 4.130, Diagnostic Code 9411), a 70 percent rating is assigned 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.

A 100 percent schedular 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 relative, own occupation or own name.

The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness.  See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995).  According to the DSM-IV, a GAF score of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment, or inability to function in almost all areas, (e.g., stays in bed all day; no job, home, or friends).  A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning.  A GAF score between 51 and 60 is 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 coworkers).  A GAF between 61 and 70 is indicative of 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.

The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  However, the Court further appears to have acknowledged that without those examples, differentiating between evaluations would be extremely ambiguous.  Id. at 442.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ( "although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).

Factual Background

The Veteran appealed the decision that assigned a 50 percent rating for PTSD effective January 17, 2008 (date of the claim).  In an interim rating decision the rating was increased to 70 percent, (also effective the date of the claim).  As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that his claim remains in controversy as less than the maximum benefit available has been awarded and he contends as recently as November 2012 that a higher rating is warranted.  See AB v. Brown, 6 Vet. App. 35 (1993).  The Board will now consider whether a higher evaluation is warranted for PTSD at any stage since the effective date of service connection.  See Fenderson 12 Vet. App. 119.  

On February 2007 VA psychiatric clinic follow-up visit, the Veteran reported a history of depression and substance abuse.  He stated that he continues to experience nightmares about his experiences in Vietnam.  He also continued with avoidant behavior, e.g., has difficulty dealing with financial difficulties.  On mental status examination, he was appropriately dressed, alert and oriented times three.  He made good eye contact and his motor function was within normal limits.  His mood was anxious and his affect was broad.  His speech was soft, but coherent.  His thought processes were organized; he had no delusions.  He denied hallucinations.  His insight and judgment were fair.  He denied suicide and homicide ideations.  The diagnoses were depressive disorder, not otherwise specified, anxiety disorder, not otherwise specified, rule out PTSD, alcohol, and opiate dependence in remission.  His GAF score was 45.

On June 2008 VA outpatient psychiatry follow-up visit, the Veteran reported that he believes that in 2001 "9/11" and events in Iraq triggered him into depression and anxiety attacks.  He stated that he was in Vietnam in his 20's refueling helicopters and "saw bodies and fire".  He stated that he still has flashbacks and thinks about it when triggered by a smell or something seen on television.  He only sleeps about four hours some nights.  He had not worked for four years.  He lives with his girlfriend (of 28 years) and helps her with her physical problems.  He spends a lot of his time watching television; and he walks daily.  On mental status examination he was calm, cooperative, well groomed and appropriately dressed.  He was alert and oriented to person, place and time.  He had good eye contact, and his motor function was within normal limits.  His mood was congruent.  His speech was clear and coherent.  His thought processes were organized, and goal directed.  He denied preoccupations and expressed no delusions.  He denied auditory, visual, olfactory, and tactile hallucinations.  His insight and judgment were fair.  He denied suicidal and homicidal thoughts and plans.  He had not had suicide thoughts for the past 1 to 2 years.  The diagnoses were schizoaffective disorder and PTSD.

On July 2008 VA PTSD examination, it was noted that the Veteran had six hospitalizations from 1985 to 2007.  He reported treatment with anti-psychotic, anti-depressant, and anti-anxiety medications along with other specified medication to treat symptoms of his psychiatric disability.  He reported that hallucinations were under good control, but intrusive thoughts and anxiety were not improved and depression was still present.  The Veteran is not married and has no children.  He had minimal contact with his sister.  His parents are deceased, but he had a fair relationship with them while they were alive.  He stated that he had gradually become withdrawn from people.  He has had a girlfriend for the past 24 years and stated that the relationship between them is strained due to his emotional withdrawal from her and occasionally arguing with her.  He has two other friends, one of whom he sees regularly and the other rarely.  He stated that he watches television, but otherwise he "vegetates" and keeps away from others.  He reported a history of suicide attempts (an overdose of pills 10 years ago and setting kitchen on fire in 2005).  He also reported a history of heavy alcohol and heroin use.  He had three prior detoxification/rehabilitation programs and have been "clean and sober" for about 10 years.

On psychiatric examination, he was clean, casually dressed, and cooperated with the examiner.  His psychomotor activity was unremarkable.  His speech was clear and coherent.  His affect was blunted; his mood was anxious, depressed, and irritable at times.  He was able to do serials 7's and spell a word forward and backward.  He was oriented to person, time and place.  His thought process was unremarkable.  He had intrusive thoughts of Vietnam.  He did not have delusions or hallucinations (no auditory hallucinations for about 1 to 2 years, prior to that "voices" told him to hurt himself).  His intelligence was average.  He understood the outcome of behavior and that he has a problem.  He sleeps 4 hours a night and have bad dreams most nights.  His behavior was appropriate.  He did not exhibit obsessive/ritualistic behavior.  He described having panic attacks once per week in response to memory of Vietnam combat.  He did not have homicidal or suicidal thoughts.  His impulse control was fair and there was no report of violence.  He did report that he occasionally loses his temper.  He has the ability to maintain minimum personal hygiene and there were no problems with activities of daily living.  His remote memory and immediate memory were normal.  PTSD symptoms were described as persistent re-experiencing the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, increased arousal, and impairment in social, occupational or other important areas of functioning.  Most of the symptoms occur daily, or most days, and the degree is moderate to severe.  The Veteran was largely withdrawn and isolated, and had regular symptoms of anxiety and depression.  He was, however, deemed capable of managing his financial affairs.  Regarding his employment history, he had been unemployed for 2 to 5 years.  He previously worked as a counter person for an auto parts store.  He contended that a combination of depression, anxiety and intrusive thoughts impaired his ability to concentrate at work.  

The diagnoses under Axis I were PTSD, and schizoaffective disorder-depressed type.  His GAF score was 55 (over the past 2 years).  The examiner noted that the Veteran indicated that depression and now controlled hallucinations have contributed to his functional impairment and overall quality of life.  His prognosis was guarded as the Veteran had been in treatment with limited improvement.  The examiner concluded that there was not total occupational and social impairment due to PTSD signs and symptoms; but that PTSD signs and symptoms do result in deficiencies in judgment, thinking, family relations, work and mood.  Specifically he noted that the Veteran had intrusive thoughts of combat, there was significant strife with his live-in girlfriend of over 20 years, and he was unable to work due to severity of depression , anxiety, and intrusive thoughts.  His ability to focus and concentrate at work was markedly impaired.  

On June 2009 VA Neuropsychological examination, the Veteran was evaluated for significant changes in memory and retention, with recent history of a fall with an abnormal brain MRI.  He reported that he does not remember things in the present or from a long time ago.  He reported falling down a flight of stairs and hitting his head while in the service.  In addition, he sustained a mild head injury in June 2008 when he tripped and bumped his head on a coffee table.  Following a thorough neuropsychological examination, the examiner noted that the results of the examination would suggest wide-ranging deficiencies of the Veteran's mental abilities.  However, the results also indicate that his emotional/motivational status likely interfered with his test performance.  For that reason, the test results are likely to underestimate his actual level of ability and cannot be relied upon to assess impairments.  In addition, his MMPI-2 [Minnesota Multiphasic Personality Inventory] profile suggests the presence of very severe psychopathology and probable over-reporting of symptoms, perhaps as a plea for special help.

On August 2009 VA social work psychosocial assessment, the Veteran reported that his main problem was "the lady I have been living with for the past 25 years" has liver disease and might die if she does not get a liver transplant.  He stated that he has other issues like the possibility of a foreclosure, PTSD, depression and anxiety.  He stated that he was alright now, because he is taking medications.  It was noted that the Veteran worked full-time (22 years) as a salesman for an auto parts company and functioned fairly well until 2003, when he became disabled due to exacerbation of PTSD symptoms and depression.  Regarding his psychiatric history, it was noted that he had been hospitalized numerous times, the first admission was in 1989 for 30 days due to alcohol dependence.  Since 2003 he had several admissions due to increasing depression and suicide attempts.  He attempted suicide three times, (two times by overdose and one time by setting fire in the kitchen), and was hospitalized following each attempt.  He denied any current suicidal or homicidal ideation.  He also has a history of psychiatric counseling.  

The July 2010 VA PTSD examination presents a detailed discussion of both the Veteran's symptom complaints and the examiner's findings concerning the features and severity of the Veteran's psychiatric symptoms.  The Veteran's symptom complaints and the pertinent documented psychiatric findings have been largely consistent throughout the period on appeal.  There is a substantial quantity of pertinent evidence with largely consistent or repetitive presentations of the Veteran's symptom complaints and psychiatric functioning.  To avoid excessive repetition of symptoms and findings, the Board shall discuss the non-repetitive symptoms and findings found in the July 2010 VA PTSD examination report.  

At the July 2010 VA PTSD examination the Veteran reported that his "wife" (girlfriend of 20+ years) died 6 months ago.  He reported that they had a good relationship.  He denied having any close friends, but he is friendly with his next door neighbor.  He reported chronic high level of anxiety as well as poor concentration, memory, intrusive thoughts, and nightmares.  He stated that he prefers to be alone and isolates himself.  He reported chronic symptoms of moderate severity for several hours of the day, approximately 5/7 days of the week.  He endorsed poor sleep, intrusive thoughts, nightmares, decreased concentration, hyperarousal, and anxious and dysphoric mood.  

 On psychiatric examination he appeared clean, and was casually dressed.  His speech was impoverished.  He was cooperative.  His affect was constricted and blunted; his mood was anxious.  He was oriented times three.  His thought process was unremarkable.  He was preoccupied with one or two topics, ruminations, and paranoid ideation.  There were no delusions or hallucinations; he understood the outcome of his behavior.  His intelligence was below average.  He reported that he continues to wake up after four hours of sleep and is unable to fall back to sleep.  His behavior was appropriate.  There were no panic attacks.  There was no presence of homicidal thoughts.  He endorsed passive ideations of suicide without intent or plan.  He reported forgetting what he had recently done as well as tasks.  The diagnoses under Axis I were PTSD, generalized anxiety disorder, and polysubstance dependence in remission.  The Veteran also met the criteria for a diagnosis of generalized anxiety disorder as a result of daily anxious mood.  His GAF score was 55 (currently functioning).  The examiner noted that the Veteran continues to present with significant functional impairment as a result of PTSD symptoms, particularly his inability to maintain focus and attention as well as short term memory deficits.  As a result of this, it is unlikely that he would be able to maintain employment.  In addition, the Veteran has reported that his "wife's" death has affected his mood (i.e., he is dysphoric but has not changed frequency or severity of PTSD symptoms).  The Veteran stated that he has been sober for 8 years.  With regard to his functional status, the Veteran stated that PTSD symptoms have significantly impaired both his personal and work functioning.  He reported a lack of intimacy, emotional expressivity with his late "wife" as well as decreased productivity and efficiency at his employment.  He also stated that he no longer drives as a result of poor concentration.   He also endorsed poor concentration, sleep, anxious and dysphoric mood, nightmares, intrusive thoughts, and decreased impulse control.  The examiner concluded that total occupational and social impairment due to PTSD signs and symptoms was not demonstrated; but that PTSD signs and symptoms do result in deficiencies in judgment, thinking, family relations, work and mood.  Specifically he noted that the Veteran endorsed some difficulty making decisions due to decreased concentration/focus.  He had significant impaired concentration/attention as well as intrusive thoughts.  He reported a lack of intimacy with his long-term girlfriend and no contact with family/few friends.  He endorsed significant impairment at his last job due to inability to concentrate and focus.  He reported chronic anxious and dysphoric mood.

At a September 2011 bi-monthly PTSD Avoidance Reduction Group (ARG) session, the Veteran related that he had been trying to be less emotionally avoidant recently and had begun a romantic relationship.  He stated that he was breaking out of old relational and communication patterns he had with his late wife (girlfriend of 20+ years).  The diagnoses were PTSD, generalized anxiety disorder, and benzodiazepine abuse in remission.  His GAF score was 60.  In February 2012 the Veteran attended a PTSD ARG session.  The report from the session revealed the Veteran was an active participant and provided support to other Veterans.  It was noted that lately he was socializing more with neighbors and friends.  He did not, at that time, express any suicidal or homicidal ideation, plan or intent.  On mental status examination he was appropriately groomed, calm, and cooperative.  He had good eye contact and his motor function was normal.  His mood/affect was euthymic, reactive and appropriate; his speech was normal.  His cognitive functioning was grossly intact; his thought processes were linear and goal directed, and there were no obsessions or delusions.  He had no perceptual disturbances, his insight and judgment were fair.  The diagnoses were PTSD, generalized anxiety disorder, and benzodiazepine abuse in remission.  His GAF score was 65.  In a February 15, 2012 group session the Veteran reported that he went to a movie two times with a friend without significant anxiety.  

The most recent evidence in this case features a July 2012 VA PTSD/psychiatric progress note, which shows the Veteran attended a bi-monthly PTSD ARG session where he actively participated in group discussion that included plans to attend a baseball game together (as a group).  Mental status examination at that time reveals he was calm and cooperative, and appropriately groomed.  His cognitive functioning was grossly intact.  He had good eye contact.  His mood/affect was euthymic, reactive and appropriate.  His speech was a normal.  His thought process was linear and goal directed.  He did not exhibit obsessions or delusions; he denied perceptual disturbances.  His insight and judgment were fair.  He denied suicidal and homicidal ideations.  The diagnoses under Axis I were PTSD, generalized anxiety disorder, and benzodiazepine abuse in remission.  His GAF score was 65.  

Analysis

To meet the criteria for a 100 percent disability rating, the resulting PTSD disability picture must more nearly approximate 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name.

There is no doubt that the Veteran's PTSD results in significant impairment.  This is reflected by the assignment of the current 70 percent rating.  The Board has carefully reviewed the evidence, but is led to the conclusion that the record simply does not demonstrate the types and degrees of the symptoms set forth as examples of the symptoms which would warrant assignment of a 100 percent schedular rating.

With consideration of all of the numerous items of evidence presenting competent findings concerning the Veteran's psychiatric health, the evidence does not indicate gross impairment in thought processes or communication; the Veteran has been repeatedly observed to be without such impairment by trained professionals throughout the period on appeal.  Trained professionals have described his thought processes as unremarkable, and  linear and goal directed.  Furthermore, the evidence repeatedly indicates that the Veteran is without persistent delusions or hallucinations during psychiatric evaluation (in June 2008, the Veteran stated he had not had auditory hallucinations for about 1 to 2 years, but prior to that voices told him to hurt himself).  The Veteran has not manifested grossly inappropriate behavior as characterized by any trained medical professional.  Although the Veteran has clearly experienced significant difficulties with attempted suicide, poor concentration, intrusive thoughts, sleep, anxious and dysphoric mood, these symptoms are expressly contemplated by the assigned 70 percent disability rating.  The evidence simply does not indicate that these symptoms have risen to the level of making the Veteran a persistent danger of hurting self or others; he has succeeded in controlling his impulses and in 2008 he reported that he had not had suicide thoughts for the past 1 to 2 years.  At the 2010 VA examination, while he endorsed passive ideations of suicide, he had no intent or plan.  Although the Veteran indicated that he had withdrawn from family and friends, the evidence shows that he had begun to re-establish some social relationships.  For example, during the 2010 VA examination he indicated an association with his next door neighbor.  At the September 2011 PTSD ARG session he related that he had begun a romantic relationship; and at the February 2012 PTSD ARG session he related that he was socializing more with neighbors and friends.  And while he generally related that the relationship with his long-term girlfriend was strained, the evidence shows that shortly after his girlfriend's death, during the 2010 VA examination, he reported that he had a good relationship with her.  The evidence further indicates that the Veteran has remained consistently able to take care of himself and perform activities of daily living and maintenance.  His appearance for evaluations and group sessions reflect an essential ability to perform the activities of daily living and maintenance.  The Veteran has consistently been determined (as expressly noted in numerous reports) to be oriented to person, time and place.  Finally, although the Veteran has reported having some difficulty with his memory, these descriptions correspond to the severity of memory loss contemplated by the currently assigned disability rating (as described in criteria for lower ratings); the evidence in this case directly address the Veteran's memory function and show no memory loss comparable to forgetting the names of his closest relatives, his own occupation, or his own name.

To the extent that the Veteran's significant PTSD symptomatology manifests in occupational and social impairment with deficiencies in most areas, such level of disability is expressly contemplated by the 70 percent disability rating assigned.  To the extent that some evidence indicates that the Veteran is unemployable due to the severity of his PTSD symptoms, and acknowledging that the Veteran has been granted a total rating on the basis of unemployability, such information pertains to a determination of employability which is separate and distinct from the schedular evaluation of the Veteran's PTSD under the applicable rating criteria.  The Board finds that the Veteran's PTSD does not manifest in total occupational and social impairment due to the types of symptoms matching or comparable to those contemplated by the criteria for a 100 percent disability rating.  The evidence simply does not show that the Veteran's PTSD disability picture more nearly approximates the level of impairment and types of symptoms listed for a 100 percent rating.

The Board has considered the GAF scores assigned by various psychiatric medical professionals and in various social worker consultation reports.  Aside from the GAF score associated with the Veteran prior to his filing of this claim, to include inpatient care (in April 2005 he was diagnosed with substance induced mood disorder and assigned a GAF score of 30; in August 2005, he was diagnosed with alcohol dependence, opiate and benzodiazepine abuse and substance induced mood disorder and was assigned a GAF score of 28; in March 2006 he was diagnosed with bipolar disorder, recent episode of depression with acute exacerbation, history of polysubstance dependence, and history of PTSD, he was assigned a GAF score of 30; his GAF score was 35 in September 2006).  From 2007 to 2012 the Veteran's GAF scores range from 45 to 65.  This documented range of GAF scores denote, at the lowest end, serious symptoms such as suicidal ideation or any serious impairment in social, or occupational, functioning.  The higher end of the range of the Veteran's GAF scores is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, or occupational, functioning but generally functioning pretty well, and has some meaningful interpersonal relationships.  These GAF scores, consistent with the breadth of the probative and detailed evidence in this case, most nearly match the severity of disability contemplated by the criteria for a 70 percent disability rating and do not demonstrate severity of symptomatology meeting the criteria for a 100 percent disability rating.

The Board stresses to the Veteran that a significant level of impairment due to the PTSD has already been recognized by assignment of the 70 percent rating.  However, the Board is bound to apply the regulatory criteria for rating PTSD, and 
for the reasons set forth above the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 70 percent.

Staged ratings are not for application here since the Veteran's PTSD is adequately contemplated by the now-assigned 70 percent rating during the entire time period in question since the filing of his claim for an increased rating.  The preponderance of the evidence is against the claim for a rating in excess of 70 percent for PTSD.  Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating.

In sum, the Board concludes that the preponderance of the evidence is against entitlement to a rating in excess of 70 percent.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).

Extraschedular Consideration

In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such schedular criteria was discussed in great detail above.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1)).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue.  In short, the rating criteria contemplate not only his symptoms but the severity of his disability.  For these reasons, referral for extraschedular consideration is not warranted.


ORDER

Entitlement to a rating in excess of 70 percent for PTSD is not warranted.  The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs