Citation Nr: 1306322 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-23 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than June 8, 2007 for a grant of service connection for posttraumatic stress disorder (PTSD), also diagnosed at various times as adjustment disorder and depression. 2. Entitlement to an initial rating in excess of 50 percent for PTSD, also diagnosed at various times as adjustment disorder and depression, prior to December 9, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty training from January 1986 to June 1986 and on active duty from January 2001 to August 2004. This matter came to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In that decision, the RO awarded service connection for PTSD, also diagnosed at various times as adjustment disorder and depression, and assigned an initial 30 percent rating, effective June 8, 2007. An October 2008 rating decision increased the assigned rating for PTSD, also diagnosed as adjustment disorder and depression, to 50 percent, effective June 8, 2007. Finally, a May 2011 rating decision assigned a 100 percent rating for PTSD, also diagnosed as adjustment disorder and depression, effective December 9, 2010. The Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating for psychiatric disability prior to December 9, 2010 remains in appellate status. In November 2012 the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. FINDINGS OF FACT 1. In a February 2005 rating decision, the RO denied entitlement to service connection for adjustment disorder with depression; the Veteran did not file a notice of disagreement. 2. On June 8, 2007, the Veteran filed an application to reopen a claim of service connection for a psychiatric disability; subsequently PTSD related to stressors in service was diagnosed. 3. Prior to December 9, 2010, PTSD was manifested by dysphoric, anxious, irritable, and depressed mood; limited insight and impaired judgment in February 2008; occasional pressured, tangential, or slow speech; blunted or flat affect; paranoia; hypervigilance; and passive suicidal ideation and poor eye contact in June 2008. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 8, 2007, for the award of service connection for PTSD, also diagnosed at various times as adjustment disorder and depression, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.158, 3.400 (2012). 2. Prior to December 9, 2010, the criteria for an initial schedular rating in excess of 50 percent for PTSD, also diagnosed at various times as adjustment disorder and depression, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), 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). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Initially, the Board notes that since the issue of entitlement to initial increased rating for PTSD is downstream issue from that of service connection (for which a VCAA letter was duly sent in June 2007 and March 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 v. Nicholson, 19 Vet. App. 473, 491 (2006). In Dingess, the Court held that in cases where 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 38 U.S.C.A. 5103(a), notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007). In addition, the earlier effective date claim arises from his disagreement with the effective date assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, in June 2007 and March 2008 the Veteran was issued notice pertaining to the assignment of effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The June 2007 and March 2008 letters with regard to his claim of service connection for PTSD effectively notified the Veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The June 2007 letter also notified the Veteran regarding what information and evidence was needed to substantiate his other claims for increased ratings. The case was last adjudicated in August 2012. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, 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 any 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). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Criteria & Analysis Earlier Effective Date The Board notes that the assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Generally where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Furthermore, should the right to benefits be finally established, benefits based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158. The "date of the claim" means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 also refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. §§ 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). In August 2004, the Veteran filed a formal claim of compensation for "depression/stress." He was afforded a VA psychiatric examination in December 2004 at which time he reported that he was claiming service connection for "depression because 'they told me to put that in there, some people say I'm depressed....I have a lot going on.'" The examiner remarked that the Veteran harbored a lot of resentment for the circumstances leading to his discharge as E1 [from E5] from military service. The Veteran had described having problems with his unit related to his family coming to Germany; being charged for "falsifying some documents" leading to "larceny" problems because he was paid for a period of time as an E5, but it was revoked to an E1; incurring AWOL charges; and marrying a woman with six kids. He described doing well and being "next in command in [his] squad" while in Iraq; he did not identify or describe any traumatic experiences. Rather, he stated that he had not been able to get a job since he separated from service, in part, because of the AWOL and larceny charges, and that was what was making him depressed at the current time. The diagnosis was adjustment disorder with depressed mood. The examining psychiatrist did not render a medical opinion linking a chronic psychiatric disability to military service. In February 2005, the RO denied the claim for service connection for adjustment disorder with depression. The RO enclosed a copy of the rating decision and notified the Veteran of the rating decision in a separate letter also dated in February 2005. Following the decision, he did not submit any evidence in support of his claim and did not express disagreement with the rating decision denying his claim. Thus, the February 2005 decision is final. 38 U.S.C.A. § 7105. The next communication from the Veteran was a VA Form 21-4138, Statement in Support of Claim, received on June 8, 2007 in which he sought to reopen a claim for service connection for PTSD. Eventually, in a July 2008 rating decision, the RO granted service connection for PTSD, also diagnosed as adjustment disorder and depression, effective June 8, 2007, which corresponds to the date of receipt of his claim to reopen. In November 2012, the Veteran testified that he applied for service connection for PTSD in 2004 and that the 2004 VA examiner related adjustment disorder with depression to the Veteran's military service. In support of his claim for an earlier effective date, he also testified that in 2007 he "found out that adjustment disorder and PTSD were the same thing." The Veteran's communication received by VA on June 8, 2007, constituted a claim to reopen since there was a prior final disallowance of his claim in February 2005. The assigned effective date of June 8, 2007, corresponds to the date of receipt of the Veteran's request to reopen. Based upon a complete review of the evidentiary record, the Board finds that June 8, 2007 is the earliest effective date assignable for the grant of service connection for his psychiatric disability. The remaining way the Veteran could attempt to overcome the finality of the February 2005 decision in an attempt to gain an earlier effective date, is to request a revision of the decision based on clear and unmistakable error (CUE). See 38 U.S.C.A. § 5109A(a) ("a decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."). Since the prior RO decision is final, the decision is not subject to revision in the absence of CUE. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). However, the Veteran did not claim and the record does not reflect any CUE in the prior RO decision. Notably, at the time of the February 2005 denial, the evidence of record, including the December 2004 VA examination, did not include a clinical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (under the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)), and the Veteran did not report, either in his application for VA benefits or during the VA examination, experiencing psychiatric symptoms related to any traumatic military events. Similarly, while the December 2004 VA examining psychiatrist did diagnose adjustment disorder with depressed mood, the psychiatrist did not express a medical opinion linking a chronic psychiatric disorder to military service. The earliest diagnosis of PTSD that was linked to stressors in service post dated the June 2007 application to reopen the claim. Accordingly, the earliest date of receipt of a reopened claim of service connection for psychiatric disability is June 8, 2007, the date the RO received the Veteran's request to reopen his claim of service connection. In reaching this decision, the Board that VA is required to resolve doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not for application in this case because a clear preponderance of the evidence is against assigning an earlier effective date. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Increased Rating 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; 38 C.F.R. § 4.1. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (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 notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection, and staged ratings are to be considered. By way of history, an August 2007 rating decision conceded military stressors associated with combat experience in Iraq, and a July 2008 rating decision awarded service connection for PTSD, also diagnosed as adjustment disorder and depression. His psychiatric disability is rated as 50 percent disabling prior to December 9, 2010 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). He contends that his PTSD with adjustment disorder and depression meets the criteria for a higher initial rating. General Rating Formula for Mental Disorders: Rating 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 100 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 worklike setting); inability to establish and maintain effective relationships 70 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 50 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). In assessing the evidence of record, the Global Assessment of Functioning (GAF) score 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, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). 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). GAF scores ranging from 61 to 70 indicate 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. GAF scores ranging from 51 to 60 indicate 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 or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job). GAF scores ranging from 31 to 40 indicate 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; child frequently beats up younger children, is defiant at home, and is failing at school). The symptoms listed in the relevant rating criteria are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). During a July 2007 VA PTSD examination, the Veteran reported symptoms of anger, depression, and anxiety, in that order of frequency and severity. He disclosed that the anger was related to military experiences and that he expressed his anger towards his wife. He endorsed chronic sleep disturbance and awakening often with severe anxiety symptoms, hypervigilance, and exaggerated startle response. He indicated that he had cocaine dependence for the past 14 years [since 1993], which worsened after military service. The examiner remarked that the cocaine condition seemed to have fueled the Veteran's tendencies towards emotional dysregulation, particularly regarding frustration and anger. He also described stress in his marriage, especially as his wife was closely monitoring his behaviors for relapse into cocaine usage. The examiner characterized the Veteran's reported symptoms as those of generally moderate severity. The Veteran described military experiences, including being exposed to combat situations. He stated that he had been working for the past 2 1/2 months as an instructor in "warrior tasks," teaching military personnel preparing for deployment to Iraq. He stated that he was doing well with the job, but had found it necessary to curtail anger in a few interpersonal situations. He indicated that his six-year marriage to his wife had been "tough" for many years due to his cocaine abuse, variable periods of employment, and ongoing financial problems. He described extremely abusive anger within the relationship, but without physical altercation, describing himself as a "vicious monster" with his wife when he gets verbally abusive. He reported having a few friends with whom he socializes and occasionally shooting pool and attending church and Bible studies. Objective findings on mental status examination included the following: thought process and communication skills appeared to be within normal limits; interaction was cooperative with good eye contact and no inappropriate behavior; he reported and appeared able to maintain personal hygiene; he was well oriented to all three spheres; short and long-term memory appeared to be without gross deficits, although he reported mild difficulty with attention span and concentration as well as mild dysfunction with short-term memory in routine daily functioning; he did not report any history of obsessive or ritualistic behaviors and none were apparent; speech was normal in rate, tone, and inflection and appeared to be logical and well-oriented; he did not report any history of anxiety consistent with panic disorder and no symptoms of such were evident; mood was dysphoric and anxious with mild irritability; and impulse control problems were not evidence during the interview, but the examiner noted that the history of drug usage and explosive anger would be indicative of significant problems with impulse control. The Veteran also denied having delusions or hallucinations, and none were apparent during the clinical interview; he denied having any current suicidal or homicidal ideation, plan, or intent. A GAF score of 62 was assigned. The Veteran was evaluated for traumatic brain injury by a VA neurologist in September 2007 for complaints associated with experiencing explosions in Iraq. On neurological examination, he was conscious, alert, and oriented; his speech was fluent; and no memory impairment or attention deficit was obvious. The examiner wondered whether some the Veteran's reported symptoms were due to his substance abuse. A January 2008 West Haven VA psychiatry note indicates that the Veteran called to obtain cocaine treatment. He stated that he had flown from Texas where his wife resides to stay with his mother in Connecticut. He denied trouble with depression, mental illness in general, thoughts or feelings of suicide, or homicidal ideation. He presented for a substance abuse treatment program (SATP) evaluation in February 2008 at the Newington VA Medical Center (VAMC). He reported a 15 to16 year history of cocaine dependence, binge pattern, typically using after every payday, and typically buying near the entire amount of his paycheck in cocaine. He also reported long-term alcohol dependence, typically drinking in bars Wednesdays through Saturdays, as much as 18 beers plus several shots. He stated that his drinking had increased after losing his job one and a half months ago. The Veteran identified some of the consequences of his drug and alcohol use to include loss of all of his jobs (10) in the last 15 years, current unemployment, family strain and alienation, and increased irritability and verbal abusiveness. He also reported PTSD symptoms, including flashbacks, intrusive thoughts, distrust of others, estrangement or avoidance of others, easily provoked to anger, hypervigilance, difficultly sleeping, and strong reaction to cues of military action. He described his wife as a "good woman," who wanted him to return home after treatment and parents and siblings who were all supportive of his sobriety. Reported mental status examination findings included alert, attentive, and fully oriented; cooperative and reasonable with appropriate grooming; normal rate and rhythm of speech; intact language; angry and dysphoric mood with congruent affect; normal, coherent thought process; no unusual thought content; limited insight; impaired judgment; intact memory; and average fund of knowledge. The Veteran endorsed flashbacks and intrusive thoughts, but denied suicidal or violent ideation. A GAF score of 45 was assigned. A March 2008 PTSD Residential Rehabilitation Program (PRRP) admission note from the Newington VAMC indicates that the Veteran was referred by an SATP clinician for treatment of PTSD secondary to a tour in Iraq. The Veteran endorsed current symptoms of flashbacks, intrusive thoughts, distrust of others, estrangement and avoidance of others, being easily provoked to anger, hypervigilance, difficulty sleeping, and a strong reaction to cues of military action. PRRP treatment records dated in April 2008 documented aggressive posturing by the Veteran when informed of group participation requirements and glaring at a social work intern after she asked the Veteran to arrive on time for group. The treatment team also believed that the Veteran appeared to be more focused on obtaining disability benefits and remaining sober using 12-step daily than participating in PTSD treatment. The team believed he would be better served at present by continuing in substance treatment, and he was discharged from the program. Meanwhile, the Veteran participated in VA OEF/OIF (Operation Enduring Freedom/ Operation Iraqi Freedom) reintegration groups from March through May 2008. Each progress note from the group documented the Veteran's mental status to be within normal limits with no evidence of suicidal or homicidal ideation. During an April 2008 group, he disclosed that his marriage was ending. He stated that his wife's teenage son struck him, probably because of the Veteran's drug-related behavior. He stated that he did not want to return to Texas because he would hurt the teenager, and he was unwilling to take responsibility for having a choice in the matter. The Veteran was afforded an additional VA PTSD examination in April 2008. The Veteran described psychiatric symptoms over the past year to include symptoms of cocaine dependence and alcohol abuse, which had resulted in not showing up for jobs and getting fired, significant family discord, and severe financial problems. He added that recreational activities, family role functioning, and interpersonal relationships had all been impaired by his drug dependence throughout most of his adult life. He also identified PTSD symptoms over the last year even when not using cocaine, including nightmares three to four times per week of someone trying to kill him, chronic insomnia, intrusive thoughts about specific events he experienced in service, irritability, avoidance, and estrangement from others. He stated he was "always" hypervigilant and struggled with anger daily. He described a history of childhood physical and verbal abuse against him and his siblings, witnessing at ten years old his brother seriously injure himself, and several traumatic experiences during his tour in Iraq. On mental status examination, he was cooperative with good eye contact and appeared to be a credible historian, although the examiner remarked that the Veteran's interpretation of events appeared affected by a sense of victimization. He displayed full range of affect, but was irritable and somewhat agitated; speech was pressured; he appeared on edge and anxious, startling when he would hear something out the door. The examiner indicated that twice during the interview the Veteran asked permission to take breaks, and he stood up and opened the door to look out at those times. The examiner believed the behavior was more related to hypervigilance and anxiety than to paranoia. The Veteran also appeared to experience much affect when talking about past troubles and unfairness that he encountered during military service; however, he would calm himself down during the interview by talking about how he prays to God to help him stay on the right path. He denied the presence of delusions, hallucinations, or suicidal or homicidal thoughts or plans. Appetite and energy level were reported as normal. Following a review of the claims file and clinical interview, the diagnosis was cocaine dependence, early full remission; alcohol abuse, early full remission, and PTSD. A GAF score of 55 was assigned, and the examiner elaborated that the Veteran had moderate symptoms including difficulty in social and occupational functioning secondary to diagnosis of cocaine dependence, noting that the Veteran may function on the job, but he had relapsed to drug use when paid, resulting in the loss of his job. The examiner also believed that the Veteran had conflict in relationships with family secondary to drug abuse. The examiner summarized that the Veteran did experience the full range of symptoms consistent with PTSD at the present time. He had an early history of psychiatric symptoms consistent with someone who had been exposed to chronic violence and antisocial behavior in childhood (anger, feelings of victimization) prior to his enlistment. The examiner believed that the Veteran's exposure to traumatic events in Iraq compounded with his preexisting difficulties (early life trauma, interpersonal and legal problem during reserve service) resulted in exacerbation of his drug problem and development of PTSD. He believed that the Veteran's symptoms of PTSD would likely further impact his ability to remain abstinent from drugs. Finally, the examiner indicated that the Veteran's PTSD signs and symptoms resulted in reduced reliability and productivity in occupational and social functioning. In a lay statement dated in June 2008, a licensed alcohol and drug counselor/licensed professional counselor from Connecticut indicated that the Veteran had struggled with marital problems, employment retention, substance use, anger outbursts, and isolation from his family since his return from a tour of duty in Saudi Arabia. In June 2008, the Veteran presented to a VA psychiatric emergency department with a chief complaint of relapsing one week previously and drinking daily since then. He stated that he became upset after his wife called saying that she had money problems and difficulty managing the children and the house. He reported symptoms suggestive of PTSD, including intrusive memories and dreams, hypervigilance and [exaggerated] startle [response], and a changed attitude after a traumatic experience in Iraq. Mental status examination findings included the following: casually groomed with good eye contact and expressive face; well-articulated speech with average rate and volume; mildly depressed mood; somewhat blunted quality and range of affect, but appropriate; goal directed thought process; thought content without delusions, obsessions, or suicidal or homicidal ideas, but with ongoing avoidance of themes related to Iraq; no perceived hallucinations; alert and fully oriented; good short and long term memory with good fund of knowledge and 3/3 registration and recall; and fair insight and judgment. The diagnosis was alcohol dependence, cocaine dependence, and rule out PTSD. A GAF score of 40 was assigned. During a psychiatry inpatient safety assessment the next day (in June 2008), the Veteran stated that he had been drinking non-stop for the past week, approximately 60 beers per day and one pint of whiskey per day. He also reported smoking two joints in the past week and using $100 cocaine two days ago. He stated that his GAF score was 45 when he came in, and he was not leaving until it was in the 70s. The Veteran denied current ideation or plan to harm himself or others, and the psychiatrist's assessment was that he was not an acute risk. The plan was to admit him for approximately four days for detox protocol and to monitor PTSD symptoms. During an SATP evaluation, the Veteran reported that he had been depressed since March and stated that he did not care if he lived, but that he did not plan to harm himself. The examiner did not believe that the Veteran needed detoxification, but instead needed further psychiatric evaluation for passive suicidal ideation. During a June 2008 mental health risk assessment the same day, the Veteran expressed motivation for therapy, stating that he was not going to leave because he needed to raise his GAF score. He identified similar symptoms as in the past, but also reported anxiety, decreased concentration, and racing thoughts. He denied active suicidal or homicidal thinking, but reported mild hopelessness, stating that he did not care about anything, but was motivated for sobriety and treatment because he expected to receive a large amount of money from back pay for his PTSD service connection claim. He indicated that he did not want to use the money on substances. On mental status examination, he was alert and fully oriented; had poor eye contact; speech was normal in rate, rhythm, and tone; he described his mood as "miserable, depressed;" affect was observed to be appropriate, but blunted with depressed mood; thought process was coherent, goal directed, and future oriented; insight and judgment were fair; and he did not appear delusional, but paranoia was observed. He denied active suicidal or homicidal ideation or auditory or visual hallucinations. During another risk assessment the next day (in July 2008), the Veteran indicated that although he stated the day before that he needed the highest level of care in a locked place to feel safe and prevent relapse, he apologized and stated that it was a misunderstanding, and he did not need to be locked up. He reported that he was sleeping and eating without a problem, and he denied any suicidal or homicidal thinking, expressed hopefulness, and denied any current psychotic symptoms, including paranoia. He now requested substance abuse day treatment. Objective findings were similar to those reported the previous day; however, he maintained eye contact, he described his mood as "pretty good," and full range of affect with euthymic mood was noted. The nurse practitioner noted that no acute PTSD symptoms were reported. During a July 2008 psychosocial intake for a VA Psychosocial Residential Rehabilitation Treatment Program (PRRTP), the Veteran described the history of his present illness as a relapse triggered by financial difficulties with his wife. However, he also stated that he first began feeling "depressed" after being discharged from the PRRP program in April 2008 and slowly stopped going to meetings. He believed his main issue at present was the need for PTSD treatment. On mental status examination, he appeared well groomed; attitude was cooperative; motor activity was calm; mood was euthymic; affect was appropriate; speech was normal; thought process was intact; thought content or perception was intact and appropriate without hallucinations or delusions; he was fully oriented; and he had intact memory, judgment, and insight. The Veteran's goal was to complete SATP and get into a PTSD program. The social worker assigned a GAF score of 42. During a July 2008 VA medication management visit, the Veteran presented with "considerable psychosis, delusions, and paranoia. He responded, 'yes' to all questions in [an assessment] for psychotic and associated symptoms." He reported seeing the future, especially at night, doing "God's work," and indicating that God communicated with him. He stated that he had looked for microphones and cameras during VA therapy groups; that others had the ability to plant thoughts inside his head and remove thoughts at will; and that parts of his memory had been erased. The nurse indicated that the Veteran demonstrated clear paranoia while in the interview. The Veteran also stated that he believed everything around him was scripted, asking if events were part of a grand plan to have him controlled by the government. He reported ongoing PTSD symptoms such as flashbacks, intrusive thoughts and memories, and seeing the enemy in every Middle Eastern person he meets or sees. He appeared to the nurse to be hypervigilant, agitated, anxious, and easily startled by noises. The nurse concluded that the Veteran appeared to be suffering from chronic psychosis and delusional thinking, indicating that he had significant paranoia but could present as articulate and with clarity of thought. He told the Veteran that he probably had a form of schizophrenia and prescribed Risperidone. The diagnosis was delusional disorder, rule out paranoid schizophrenia. A July 2008 letter notified the Veteran that service connection for PTSD, also diagnosed as adjustment disorder and depression, was granted; the July 2008 rating decision was also enclosed. In a July 2008 VA mental health treatment plan note, a social worker diagnosed schizophrenia, rule out schizoaffective disorder, alcohol and cocaine abuse in short term remission, and PTSD and assigned a GAF score of 43. Mental status examination findings were not reported. A July 2008 VA mental health telephone note indicates that the Veteran called, reporting that he missed three recent appointments and did not attend group earlier in the day due to lack of transportation. Another social worker contacted him in August 2008 to inform him that it was his responsibility to contact the travel office to arrange rides for follow up appointments. An August 2008 psychiatry note indicated that the Veteran failed to appear for his appointment or to call to cancel. A September 2008 mental health note reflects that the Veteran called inquiring about his application to Northampton and information on Montrose. He was encouraged to contact his OEF/OIF provider regarding his treatment. He stated that he was only interested in residential treatment programs to address PTSD; the social worker observed that the Veteran had failed to follow through with mental health clinic visits. She also commented that the Veteran was unwilling to accept that his problems related to anything other than PTSD and noted that the Veteran was frustrated that mental health professionals did not agree to his diagnosis. In October 2008, the Veteran presented to the mental health clinic as a walk-in requesting refills of medications that ran out three weeks ago. He had no particular complaints, and the psychiatrist observed that there was no current evidence of suicidal or homicidal ideation or auditory or visual hallucinations. The diagnosis was schizophrenia, and a one-month supply of medications was refilled. An October 2008 VA treatment note dated a few days later indicates that the Veteran presented to the Homeless Veterans Primary Care Clinic requesting acute intervention for cocaine and alcohol use with the hope for quick referral to local VA inpatient PTSD treatment. During a review of systems, he endorsed neurological complaints including memory loss, blackouts, headaches and migraines, and dizziness. The assessment included PTSD and polysubstance abuse, and he was referred to another clinician to arrange for services. During an October 2008 SATP evaluation at the Northampton VAMC, he endorsed the following current symptoms: depression, anxiety, irritability, delusions, hallucinations, mood swings, sleep disturbance, appetite or energy disturbance, memory loss, and dissociation. He denied suicidal or homicidal ideation, but also stated that he was reluctant to disclose suicidal ideation for fear he would be involuntarily committed. He indicated that he last used alcohol, cannabis, powder cocaine, and crack cocaine five days previously; and he acknowledged that his use of substances had caused problems with work, family, housing, finances, and social isolation. The psychologist observed the Veteran's mental status as oriented, lethargic, and depressed. The psychologist noted that the Veteran seemed to function well despite his reported perceptual disturbances including delusions and auditory and visual hallucinations. The diagnosis was alcohol dependence, cocaine dependence, PTSD (provisional), rule out schizophrenia, and rule out major depressive disorder with psychotic features; a GAF score of 40 was assigned. During an October 2008 evaluation with a VA psychiatric mental health nurse practitioner, mental status examination findings included the following: awake, alert, mostly cooperative, fair eye contact; no tremors or abnormal movements noted; speech with slow rate and normal volume, tone, and prosody; mildly anxious mood; flat and somewhat irritated affect; intact cognition; grossly intact memory; linear thought process; no delusions; and insight and judgment both fair to good. The Veteran denied suicidal or homicidal ideation or intent, flashbacks, and auditory or visual hallucinations. During an October 2008 evaluation with a VA psychiatrist four days later, speech was mildly pressured and slightly tangential, and the Veteran expressed fears that events in the world would conspire against him to harm him. The psychiatrist noted that the Veteran was aware that he was paranoid. The Veteran also expressed fear about his potential to harm others, believing he would become rageful if someone "disrespected him." However, he denied a desire to harm anyone. The assessment was that the Veteran was clearly paranoid, which put him at risk for violence. A December 2008 letter notified the Veteran that the initial assigned rating for his PTSD had been increased to 50 percent, effective June 8, 2007, and enclosed a copy of the October 2008 rating decision. During a January 2009 VA joints examination, the Veteran stated that he had been unemployed since October 2007 related to treatment for his substance abuse issues. In April 2009, the Veteran presented to the El Paso VA Outpatient Clinic (OPC) for psychiatric treatment. He stated that he had been sober for one year, had not been using any psychotropic medications for one to two months, had fragmented sleep due to sleep apnea, anger and nightmares, high anxiety level, sadness, becoming aggressive easily, and having flashbacks about combat experiences. He denied hypomanic or psychotic symptoms or suicidal ideation. On mental status examination, grooming, hygiene, and eye contact were good; he was alert and oriented in all spheres; behavior was calm and cooperative; speech was regular in rate, rhythm, and tone; mood was described as "frustrated;" affect was congruent and appropriate; thought process was coherent, logical, and goal directed; insight and judgment were good; and the Veteran denied current suicidal or homicidal ideation or auditory or visual hallucinations. The assessment was PTSD/alcohol cocaine dependence partial remission, and a GAF score of 68 was assigned. During an August 2009 VA psychiatry visit, the Veteran reported that he was not taking his medications as prescribed two out of every seven days; however, he claimed having a better mood state, less anxiety, better sleep, and decrease in flashbacks and other anxiety symptoms. Mental status findings were similar to those reported in April 2009, but his mood was described as "better." A GAF score of 70 was assigned, and the psychiatrist encouraged the Veteran to stay adherent with medications. During an April 2010 psychiatry visit, the Veteran stated that he was married and living with his wife and ten children and going to school to study business. He stated that he did not like to be with people, his hypervigilance had increased to the level of paranoia, he felt stressed much of the time, and his sleep was poor even with Trazodone. The Veteran reported feeling sleepy during the day, which the psychiatrist believed might be caused by his untreated sleep apnea. He denied suicidal thoughts. The psychiatrist observed that the Veteran's affect appeared a little depressed. Subsequent VA treatment records dated through November 2010 did not include objective mental status findings. In correspondence received in December 2010, the Veteran's wife described behaviors she had witnessed by the Veteran. She described elevated anxiety, locking doors and windows several times, difficulty concentrating, aggressive behavior, sleep disturbance, isolating himself in the bedroom during family functions, and being fired from his job for missing work due to not being able to leave the house after having what he called a shell shock episode. She stated that he constantly lashed out at her and their six children. He also planned to send their older children to college, but because he was not working, they frustrated him constantly. The Board has carefully considered the objective evidence of record as well as the contentions and supporting lay evidence from the Veteran, his representative, and his wife, and finds that the Veteran's PTSD, also diagnosed at various times as adjustment disorder and depression, is not so severe that a higher, 70 percent, disability rating is warranted prior to December 9, 2010. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence reflects that the Veteran's PTSD symptoms, including psychiatric symptoms that cannot be distinguished from other psychiatric disorders, have more nearly approximated the criteria for the initial 50 percent rating currently assigned. At the outset, the Board notes that, in addition to PTSD, adjustment disorder, and depression, the medical evidence reflects diagnoses of cocaine dependence, alcohol dependence, rule out paranoid schizophrenia, delusional disorder, rule out schizoaffective disorder, and rule out major depressive disorder with psychotic features. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In many instances during the course of this appeal, the Veteran himself has specifically attributed his problems and symptoms of psychiatric disability to disabilities or factors other than PTSD, particularly his substance abuse. For example, between February 2008 and January 2009, the Veteran has attributed job loss, unemployment, family strain and alienation, financial problems, increased irritability, verbal abusiveness, and impaired recreational activities and interpersonal relationships to his drug abuse, which began years before his second period of military service. In those instances where the Veteran's symptoms were related to psychiatric disorders other than PTSD, the Board does not consider those symptoms in evaluating his service-connected PTSD. However, in other instances where there is no indication that it is possible to distinguish the symptoms from the Veteran's various psychiatric disorders, the Board has considered all of his psychiatric symptoms in evaluating his PTSD. In this case, the Board finds that the Veteran's PTSD, also diagnosed as adjustment disorder and depression, has been manifested objectively by dysphoric, anxious, irritable, depressed mood; limited insight and impaired judgment in February 2008; occasional pressured, tangential, or slow speech; blunted or flat affect; paranoia; hypervigilance; and passive suicidal ideation and poor eye contact in June 2008. These findings more nearly approximate the criteria contemplated for a 50 percent disability rating. The Board finds that the preponderance of the competent and credible evidence of record does not demonstrate, or more nearly approximate, occupational and social impairment with deficiencies in most areas, the criteria for the next higher, 70 percent, rating prior to December 9, 2010. While the Veteran contends that his PTSD symptoms were more severely disabling than what is reflected in the assigned 50 percent rating, a review of his VA mental health and SATP records, in fact, shows that his symptoms were generally stable and, in fact, improved by 2009 when he achieved a year of sobriety and was taking his psychotropic medications at least five out of seven days per week. The Board also finds that the next higher, 70 percent, rating has not been more nearly approximated prior to December 9, 2010 because the objective medical evidence does not show such symptoms as suicidal ideation except in June 2008 when he expressed passive suicidal thoughts; obsessional rituals that interfere with routine activities; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective work and social relationships that are characteristic of the 70 percent rating. Rather, the medical evidence of record from this period indicates that, while some paranoia and hypervigilance was observed by medical personnel and while his wife suggested some obsessional ritual behavior characterized by door and window locking, such behavior has not been shown to interfere with the Veteran's routine activities. Similarly, while he has been observed as angry and irritable and an October 2008 VA psychiatrist indicated that his paranoia put him at risk of violence, the evidence reflects that the Veteran has apparently controlled any impulses toward violence and refrained from engaging in violent behavior during this time period. Finally, while the Veteran left his wife to seek substance abuse treatment in another state and they separated during the pendency of the claim, he apparently returned to Texas and his wife, and reported one year of sobriety in April 2009. These facts demonstrate some motivation and an ability to establish and maintain social relationships. Collectively, the aforementioned medical evidence reflects that, the Veteran's PTSD symptoms, including psychiatric symptoms that have not been attributed to other psychiatric disabilities or factors, have resulted in no more than occupational and social impairment with reduced reliability and productivity prior to December 9, 2012. This is a level of occupational and social impairment is consistent with the currently assigned 50 percent disability rating and specifically supported by the conclusions of the April 2008 VA examiner. The Board further finds that none of the GAF scores assigned at any point since the effective date of the award of service connection and prior to December 9, 2010 provides a basis for assigning a higher rating. While GAF scores of 40 are indicative of some impairment in reality testing or communication or major impairment in several areas and while GAF scores ranging from 41 to 50 are indicative of serious symptoms, the Board observes that the July 2008 GAF score of 43 was assigned without any apparent mental status examination performed. Other GAF scores were assigned when mental status examinations revealed only limited "negative" findings (GAF score of 40 in June 2008 with mildly depressed mood and somewhat blunted affect, GAF score of 40 in October 2008 with lethargy and depressed mood) or when mental status examination revealed no "negative" objective findings (GAF score of 43 in July 2008). The Board acknowledges that these scores could be considered suggestive of a higher rating; however, the accompanying medical evidence provides insufficient medical information to support a higher rating. In addition, the Board finds the GAF scores ranging from of 62 and 55 on VA examination in July 2007 and April 2008, respectively, hold more probative value than the outlying scores in the 40s because they were generally attributed to PTSD and not to other problems such substance abuse or schizophrenia, and each score was supported by a detailed subjective history from the Veteran and a comprehensive mental status examination. In any event, the Board emphasizes that a GAF score is not dispositive of the evaluation question; rather as indicated above, the symptoms shown provide the primary basis for an assigned rating. Here, as indicated above, the Veteran primarily exhibited symptoms typically associated with a 50 percent rating. Hence, the assigned GAF scores in the 40s are not considered accurate indicators of the overall level of psychiatric impairment due to PTSD. In this case, the Board assigns more probative weight to the VA examiners' opinions that the Veteran's PTSD is moderate. In determining that the criteria for a 70 percent rating for the Veteran's psychiatric symptoms shown are not met, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the circumstances of this case, the Board finds that, since the June 2007 effective date of the award of service connection and prior to December 9, 2010, the Veteran's PTSD symptomatology has not met or more nearly approximated the criteria for a 70 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 70 percent, rating are not met, it follows that the criteria for an even higher rating (100 percent) likewise are not met. The Board has also considered whether the Veteran's psychiatric disability 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 psychiatric disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular rating is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). For all the foregoing reasons, the Board finds that the most probative and credible evidence does support the assignment of an initial rating in excess of 50 percent for PTSD, also diagnosed at various times as adjustment disorder and depression. Therefore, entitlement to an increased rating for PTSD is not warranted, and the claim must be denied. The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted. In reaching the conclusions above, 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 for a higher initial rating than that assigned, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an effective date earlier than June 8, 2007 for a grant of service connection for PTSD, also diagnosed at various times as adjustment disorder and depression, is denied. An initial rating in excess of 50 percent for PTSD, also diagnosed as adjustment disorder and depression, prior to December 9, 2010 is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs