Citation Nr: 1304546	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  08-16 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina 


THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD).


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel


INTRODUCTION

The Veteran had active duty service from August 1987 to March 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for PTSD and assigned a 30 percent evaluation effective August 9, 2004.


The Board issued a decision in January 2010, in which it denied entitlement to an initial evaluation in excess of 30 percent for PTSD. 

The Veteran appealed the Board's January 2010 decision to the U.S. Court of Appeals for Veterans Claims (Court).  In an October 2011 Memorandum Decision, the Court vacated and remanded the Board's decision.  In March 2012, the Board remanded the appeal pursuant to the Memorandum Decision.

The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDING OF FACT

Since the effective date of the grant of service connection for PTSD, that disability has been manifested by mild to moderate impairment primarily manifested by such symptoms of anxiety and depression; a mildly impaired memory; nightmares, intrusive thoughts, and flashbacks; sleep impairment; occasional panic attacks; hypervigilance with an exaggerated startle reflex; and, irritability with argumentative behavior.


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 30 percent for service-connected PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans' Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) defines VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, the appeal arises from the initial award of service connection for PTSD.  Preadjudication VCAA notice was provided in an August 2004 letter which advised the Veteran of the evidence needed to establish service connection, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA.  Subsequent letters advised the Veteran how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations.  December 2007 and August 2008 letters advised the Veteran of the evidence needed to substantiate his claim for a higher rating for PTSD.  The claim was last adjudicated in October 2012.

However, the appeal arises from the initial award of service connection.  In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, VA's duty to notify in this case has been satisfied. 

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records, VA treatment records and examination reports, and lay evidence.

Additionally, the prior remand instructions were substantially complied with.  The Board's March 2012 remand instructions included providing the Veteran with a current VA examination and, pursuant to the Court's October 2011 memorandum decision, attempting to obtain private medical records from Dr. Lindgren.  The Appeals Management Center sent the Veteran an April 2012 letter asking him to fill out a release form for Dr. Lindgren.  However, no response was ever received.  The Board notes that it is well established that VA's duty to assist a claimant is not always a one-way street.  A claimant seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).   Furthermore, as directed, the Veteran was afforded an April 2012 VA examination to evaluate the current severity of his psychiatric disorder.  

Moreover, to the extent that the April 2012 VA examiner was unable to provide a current psychiatric diagnosis or assessment of occupational and social functioning, the examiner explained that the Veteran's interview and psychological testing indicated that his reports were unreliable.  Moreover, in light of his repeated overreporting or inaccurate reporting of symptoms and lack of cooperation during VA examinations, the Board finds that a remand for an additional examination would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran.  See Soyini v. Principi, 1 Vet. App. 540, 546 (1991).  Accordingly, the claim will be evaluated based on the evidence currently of record.  Furthermore, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument, as well as presenting for VA examinations.  Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent 
the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Board has reviewed all of the evidence in the Veteran's paper claims file and electronic claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In the June 2007 rating decision on appeal, the RO granted service connection for PTSD effective August 9, 2004, and assigned a 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411.

Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods 
of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130 (2012).

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is warranted for 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.  Id.

A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (2012).

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)).  A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect 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).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  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 (2012).

Based on a review of the evidence of record, the Board finds that an initial evaluation in excess of 30 percent for the Veteran's service-connected PTSD is not warranted.

The Board notes that there is a significant discrepancy between the privately-assessed GAF score of 35 in May 2004 and the VA examiners' GAF assessment 
of 60 in two VA examinations in May 2007 (one was initially a GAF of 50, 
but was changed in an addendum after review of the psychological testing).  Throughout the record - and specifically in a statement made in May 2007 in support of his claim, as well as during both May 2007 VA examinations and the private examination - the Veteran complained of symptomatology to include homicidal and suicidal ideations; auditory and sensory hallucinations and delusions; severe concentration and memory problems; severe estrangement and detachment from all social activities and relationships, including familial relationships; and frequent panic attacks, irritability and angry outbursts.  However, during both 
May 2007 VA examinations and a subsequent April 2012 VA examination, VA examiners specifically noted the Veteran's tendency to overreport or inaccurately report his symptomatology.  In this regard, the VA examiner from the May 15, 2007 VA examination noted the Veteran's tendency to "claim maximum symptomatology on whatever was asked."  

Furthermore, during the May 30, 2007, and April 2012 VA examinations, the Veteran was administered several psychological tests.  The results of those tests indicated that he was well above the cutoff for having a psychological problem, 
but that the validity of these tests was rendered unreliable due to symptom overreporting or exaggeration.  The May 30, 2007, VA examiner specifically concluded that the Veteran's Miller Forensic Assessment of Symptoms Test (MFAST) score indicated "likely feigning of symptoms not typically reported by severely impaired psychiatric inpatients."  He further concluded that there was "extreme symptom overreporting" by the Veteran and that his "[w]ide range of severe psychiatric symptoms [were] not displayed or congruent with interview presentation."  The examiner ultimately diagnosed mild PTSD.  Similarly, the April 2012 VA examiner noted that the Veteran's test score on a self-administered screening used for the detection of exaggeration of symptoms and endorsement of atypical symptom patterns was suggestive of exaggeration of symptoms.  As a result, the examiner was unable to interpret with confidence the results of other testing related to PTSD symptomatology and combat exposure.  Further, due to the stated inaccuracy of the Veteran's report, the examiner was unable to provide an assessment of functioning.  Significantly, the April 2012 VA examiner did not diagnose any psychiatric disorder.  

Thus, based on the foregoing, the Board finds that the Veteran's account of his symptomatology to be unreliable, and thus, the most likely source of the significantly lower GAF score of record.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).  

Additionally, the private examination in May 2004 is internally inconsistent and therefore lacks probity.  Specifically, the private physician notes that the Veteran's symptomatology arises from combat experiences in Panama between 1987 and 1992.  Service-connection was established due to an in-service stressor of witnessing an accidental shooting as a medic during a training exercise while in Panama, not because of any combat experience during military service.  Furthermore, the private physician lists all of the Veteran's claimed symptomatology, and then does an examination of the Veteran which reads: "Cooperative.  Normal dress.  Normal speech.  Anxious mood.  Affect restricted.  Thought process linear.  No current hallucinations or delusions.  No current suicidal or homicidal ideation.  Fair attention.  Judgment and insight fair."  After this objective examination, the private physician rendered a GAF score of 35.  The GAF score assessed by the private physician is essentially based on the Veteran's subjective report of symptomatology, as the objective findings on examination do not appear consistent with such a low score.  

Further example of this internal inconsistency is the private physician's conclusion that the Veteran is "severely compromised" in his ability to sustain social relationships and work relationships.  The examiner noted that he considered the Veteran permanently disabled.  This conclusion is rendered after the private physician specifically noted that the Veteran had been married for 15 years, and that he was currently working as a welder.  No rationale for such opinion was noted, even after objective facts that the private physician himself noted would suggest a contrary conclusion.  

Given these inconsistencies, as well as the Veteran's tendency to significantly over-report his symptomatology, the Board places little, if any, probative weight in the private physician's conclusions as to the severity of the Veteran's symptomatology.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship with other items of evidence).  Further, as the Veteran's subjective reports are deemed unreliable, the Board accords more probative value to the objective evidence of record in evaluating the Veteran's claim, of which the May 2007 and April 2012 VA examinations are most probative.  

In this regard, the Board lends great probative weight to the May 2007 and April 2012 VA examiners' opinions.  The Board finds that the symptomatology documented during those examinations, as stated above, is not commensurate to a higher evaluation than already assigned.  Specifically, the Board notes that, during the May 2007 VA examinations, the Veteran was noted as being depressed, anxious, isolated and withdrawn.  However, the Veteran was noted as being married, having some interaction with his children, getting along with his mother, stepfather and half-sister, and having some friends.  Additionally, the Veteran was shown to be a welder for several years, and had recently become a forklift driver with the same company.  He was noted as not being limited in his employment except for sick days.  During the subsequent April 2012 VA examination, the Veteran was still married to his wife of 23 years, reported a close relationship with a friend and a cousin, and enjoyed fishing for leisure.  He was also working full time as a welder at the time of the examination, a position which, though stressful, he had held for seven years.  He reported missing one to two days of work during the year due to a hangover.  The foregoing findings indicate that while the Veteran may have had some limitation to his social and working relationships, the Veteran still maintained several interpersonal relationships and stable employment.  

Furthermore, the Veteran has not demonstrated symptoms such as impaired abstract thinking or circumstantial, circumlocutory or stereotyped speech, or difficulty in understanding complex commands.  During both May 2007 VA examinations, the Veteran's thought processes were noted as being unremarkable, and a VA examiner described the Veteran as being clear and coherent.  Furthermore, the April 2012 VA examination report does not reflect any observations of impaired thought processes, impaired speech, or difficulty understanding complex commands.  Significantly, the Veteran was apparently able to complete all the psychological testing requested by the April 2012 VA examiner.  Moreover, the Veteran's argument articulated in his August 2007 Notice of Disagreement laid out a clear, coherent, lucid, and well-thought out argument as to why he was entitled to a higher evaluation than what he was currently assigned.  The Veteran cited case law and statutory regulations in reference to his arguments.  The Board finds that such logical, rationed and articulated argumentation to be evidence that the Veteran does not demonstrate impaired thought or speech, nor is it evidence that the Veteran lacked the ability to understand complex commands.

The Veteran is not objectively shown to have any significant impairment of his short-term or long-term memories, or concentration problems, as alleged.  The Veteran, during May 2007 VA examinations, was shown to be oriented to time, place and person.  He was able to spell "world" frontwards and backwards and do serial 7's.  The Veteran could articulate details about himself such as his date of birth, address and social security number.  Additionally, the May 15, 2007 VA examiner noted that the Veteran was not tangential, nor did he have "pressured speech, flight of ideas or loose associations.  He communicated well."  The Board finds that this is evidence that the Veteran was not demonstrating any concentration problems, as he has asserted, and that the Veteran's memory is not more than mildly impaired, as noted in the VA examinations.

The Veteran further asserts that he has homicidal and suicidal ideations, as well as argumentative behavior with everyone.  Neither the private physician's opinion nor the May 15, 2007 VA examination noted any suicidal or homicidal ideations.  However, the Veteran did report suicidal and homicidal ideations, particularly as to road rage and dealing with people in stores and crowds, during the May 30, 2007 VA examination.  He was noted as not having any current plan or intention.  However, such report was provided during an examination in which exaggeration 
of symptomatology was noted by the examiner.  

Additionally, while the May 30, 2007 VA examiner noted that the Veteran complained of panic attacks 2-3 times a week, he also noted that the Veteran overreported the severity of his symptomatology.  Both May 2007 VA examiners did, however, note that the Veteran suffered from panic attacks.  The VA examination from May 15, 2007, noted these panic attacks as "occasional."  Therefore, the Board finds that since the Veteran has a tendency to overreport his symptomatology, panic attacks are more likely "occasional" rather than more frequent, as the Veteran reported.  

Finally, the Board has considered the lay statements received in March 2012 from the Veteran's two children and his wife, and finds that they do not support entitlement to a rating in excess of 30 percent.  Those statements generally indicate that the Veteran has a short temper, mood swings, fusses about little things, has an attitude, thinks that others are always wrong, does not attend family functions, and prefers to stay at home.  His wife further reported that the Veteran has nightmares, does not trust anyone, does not communicate well with his children, and stays to himself unless he is working.  She also indicated that he can be very nice, but that a conversation can turn into an argument at any time.  All three statements indicate the Veteran's alcohol use to be a factor in family discord.  However, in one statement, a child observed that the Veteran connects and communicates great with other people in person or on the phone, but seems like he would rather stay home and rest.  That child also reported that, at times, the Veteran is like a best friend.  Another child reported that the Veteran "sometimes" likes to be by himself, implying that at other times, the Veteran does not isolate.  Additionally, those statements indicate that the Veteran spends time listening to music, doing yard work, and "messing with" his boat.  The foregoing lay evidence shows that, although the Veteran exhibits some problems with anger and irritability and 
prefers to stay home, symptoms which are contemplated by his currently-assigned disability rating, he has leisure pursuits and is capable of positive social interaction with others.

The Board recognizes that the use of the term "such as" in 38 C.F.R. § 4.130  demonstrates that the symptoms after that phrase are 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.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  In this case, the credible symptoms reported in VA examination reports, and those symptoms supported by lay statements of record from the Veteran's wife and children, along with the objective findings on VA examination and the private examination, reflect no worse than moderate symptomatology and functioning.  The Veteran's PTSD has primarily been manifested by symptoms such as occasional panic attacks, intrusive thoughts, nightmares, flashbacks, irritability and argumentative behavior, depression, anxiety, sleep impairment, and mildly impaired memory.  Despite the foregoing symptoms, the Veteran works full-time, has some recreational and leisure pursuits, is close with his cousin and another friend, and maintains relationships with his wife and children.  Furthermore, the Veteran has not sought or required medication, treatment, or therapy for his claimed psychiatric symptoms during the period on appeal.  Indeed, the Veteran has indicated he received no treatment since 2004.  In sum, occupational and social impairment with reduced reliability and productivity has not been shown and a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). 

The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his anxiety disorder, particularly in light of the evidence that the Veteran's self-reports are inaccurate or exaggerated.  The overall impact of the symptomatology noted in the medical and lay evidence more nearly approximates the 30 percent evaluation assigned throughout the entirety of the appeal period.  See 38 C.F.R. § 4.130, Diagnostic Code 9411; see also Fenderson, supra.

As for the Veteran's specific argument that the private physician's opinion should be given greater weight because the private physician is the "treating physician," the Board notes that such a treating physician rule is not subscribed to by VA.  See White v. Principi, 243 F. 3d 1378 (Fed. Cir. 2001) (the "treating physician" rule is not applicable to VA claims).  Additionally, the Veteran indicated in the May 2007 and April 2012 VA examinations that he was not seeing anyone for on-going psychiatric treatment for his condition.  In fact, during the May 15, 2007 VA examination, while he noted that he saw the private physician in 2004, he stated that he only saw this physician "a couple of times," and during the April 2012 VA examination, the Veteran denied receiving mental health treatment since his May 2007 examination.  Regardless, as discussed above, the Board considered the private physician's opinion amongst the weight of other evidence of record, and found that such opinion had internal inconsistencies and lacked probative value when compared to the VA examinations from May 2007 and April 2012.

Finally, as to the Veteran's argument that he should be assigned a higher evaluation on the basis of his GAF scores alone, the GAF score is but one factor the Board can consider.  The Board considered the GAF scores against the weight of the described symptomatology provided by the private physician and three VA examiners.  While the Veteran places heavy significance on the GAF score of 35, the Board has already discussed above why it finds that GAF score to be entitled to little, if any, probative value.  Likewise, he argues that he has moderate symptomatology based upon the assessment of the GAF score of 60.  However, based on the objective findings during VA examination and the lack of credibility in the Veteran's symptom reporting, the Board finds the Veteran's symptomatology more nearly approximate the criteria for a 30 percent evaluation, and do not support an evaluation in excess thereof.

The Board has also considered whether the Veteran's PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for consideration of additional symptomatology than is currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 

As a final matter, the Board acknowledges that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record.  22 Vet. App. 447 (2009).  In this case, however, the Veteran has not alleged that he is unable to work on account of his service-connected disability.  On the contrary, available evidence shows that the Veteran is currently working.  As the Veteran does not allege that he is unemployable on account of his service-connected disability currently before the Board, the Board finds that a claim for a TDIU has not been raised by the record.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An initial evaluation in excess of 30 percent for service-connected PTSD is denied.




______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs