Citation Nr: 1317141	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  06-09 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to January 1, 2007, 50 percent disabling from January 1, 2007, and 70 percent disabling from June 7, 2008.  

2.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to June 7, 2008.  


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Esq.


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel


INTRODUCTION

The Veteran served on active duty from July 1967 to May 1968.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in March 2009 and April 2010.  

The March 2009 rating decision granted service connection for PTSD pursuant to the Board's December 2008 decision.  A 30 percent rating was assigned effective February 24, 2004, and a 50 percent rating was assigned effective January 1, 2007.  The Veteran appealed the ratings assigned.  He also appealed the denial of entitlement to a TDIU issued in the April 2010 rating decision.

In an August 2011 decision, the Board granted a 70 percent rating for PTSD and entitlement to a TDIU, both effective June 7, 2008.  Ratings in excess of 30 and 50 percent prior to June 7, 2008, were denied.  The Veteran appealed the Board's August 2011 decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2012, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacated that portion of the Board's August 2011 decision that denied a rating in excess of 30 percent for PTSD from February 24, 2004 to December 31, 2006, a rating in excess of 50 percent for PTSD from January 1, 2007 to June 6, 2008, a rating in excess of 70 percent for PTSD from June 7, 2008, and entitlement to a TDIU prior to June 7, 2008, and remanded the case to the Board for action consistent with the Joint Motion.  The claims have been returned to the Board for further appellate action.

The Board notes that the Joint Motion determined that the Board failed to provide an adequate statement of reasons and bases, particularly in light of the Court's decision in Mauerhan v. Principi, 16 Vet. App. 436 (2002), and failed to discuss relevant record evidence in its statement of reasons or bases.  In regards to the second finding, the Joint Motion indicated that the Board violated Robinson v. Mansfield, 21 Vet. App. 545 (2008), when it considered evidence related to the Veteran's son's medical condition, and that the Board failed to consider evidence favorable to the Veteran related to his claim for entitlement to a TDIU.  

The Board notes that the issues of entitlement to service connection for hearing loss, neuropathy of the hands, claimed as secondary to Agent Orange exposure, and diabetes mellitus, claimed as secondary to Agent Orange exposure, which were remanded in August 2011, remain pending before the RO and are not before the Board at this time.  The Board advises the RO that the Veteran has recently raised the contention that his diabetes and diabetic neuropathy (as well as diabetic retinopathy) are related to his chronic PTSD.  See May 2011 statement in support of claim.  

The Veteran submitted additional evidence directly to the Board in April 2013, which was accompanied by a waiver of RO consideration.  The evidence will therefore be considered in this decision.  38 C.F.R. § 20.1304 (2012). 


FINDINGS OF FACT

1.  Prior to January 1, 2007, service-connected PTSD was not manifested by occupational and social impairment with reduced reliability and productivity.  

2.  From January 1, 2007, to June 6, 2008, service-connected PTSD was not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  

3.  From June 7, 2008, service-connected PTSD has not been manifested by total occupational and social impairment.  

4.  For the period prior to June 7, 2008, the schedular criteria for consideration of a TDIU were not met, and referral for extraschedular consideration is not warranted.  



CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 30 percent for PTSD prior to January 1, 2007, were not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 

2.  The criteria for a rating in excess of 50 percent for PTSD from January 1, 2007, to June 6, 2008, were not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 

3.  The criteria for a rating in excess of 70 percent for PTSD from June 7, 2008, were not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 

4.  The criteria for a TDIU prior to June 7, 2008, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 4.16, 4.18, 4.19 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Pre-adjudicatory notice relevant to the claim for entitlement to a TDIU was provided to the Veteran in a March 2010 letter.  Accordingly, the duty to notify has been fulfilled.  

In regards to the claim for higher initial ratings for PTSD, the Veteran is disagreeing with the rating assigned after service connection has been granted and initial disability ratings and effective dates have been assigned.  Thus the 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.  Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include VA treatment records and records from the Social Security Administration (SSA), and afforded the Veteran appropriate examinations to determine the severity of his disability.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. 

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

Increased ratings for PTSD

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate rating codes identify various disabilities.  38 C.F.R. Part 4.  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  See generally 38 C.F.R. §§ 4.1, 4.2.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are already in effect in the instant case.  

As noted above, service connection for PTSD was initially granted in a December 2008 Board decision.  In the rating decision that implemented the grant, the RO assigned ratings of 30 percent, effective February 24, 2004, and 50 percent, effective January 1, 2007, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.  See March 2009 rating decision.  The rating for PTSD was subsequently increased to 70 percent effective June 7, 2008.  See August 2011 Board decision; see also September 2011 rating decision.  The Veteran appealed the Board's August 2011 decision to the Court and the Board must now determine whether the Veteran is entitled to a rating in excess of 30 percent between February 24, 2004, and December 31, 2006, a rating in excess of 50 percent between January 1, 2007, and June 6, 2008, and a rating in excess of 70 percent as of June 7, 2008.  

In seeking service connection for PTSD, the Veteran reported the following symptoms: remembering the sight of dead and mutilated bodies from service; depression; fits of rage/intense and violent outbursts; lack of control; screaming and yelling at his wife and children; impaired sleep; persistent thoughts of Vietnam; survivor's guilt; intrusive recollections; nightmares; and needing to use a private bathroom stall (due to the in-service sexual assault, which was the basis of the grant of PTSD).  See February 2004 VA Form 21-4138; July 2004 statement in support of claim; August 2006 VA Form 21-0781.

In a lengthy August 2006 statement in support of claim, the Veteran reported that since 1996, he had been unable to function well enough to keep his assets.  He reported being physically and mentally abusive to his wife, getting along with his mother despite a generation gap, having thoughts of killing himself but for his religious beliefs, telling his banker he would kill him and, therefore, needing to stay away, threatening some of his son's workers and beating one of their trucks with a brick, and impaired sleep (though he acknowledged he would awaken due to sleep apnea and then lie awake thinking, tossing and turning, and having occasional night sweats).  The Veteran also indicated that he had impaired memory, that certain things triggered his memories (ambulances, wrecks, people talking about things where people got hurt, the smell of diesel and jet fuel, helicopters, arguments, and seeing other Veterans), that he has had altercations with neighbors and sleeps with a loaded gun under his bed, that he does not socialize, that he yells at others to be quiet if he goes to a show, that he gets easily irritated and belligerent, that he yells at strangers and chases cars and throws things at cars, that he has punched his fist through a wall, that he is severely depressed, that he has spatial disorientation, that he stays clean but does not shave, that he has trouble being around his son, who has similar symptoms, and that he is stressed out by people telling him he wants money, not being able to sleep, and having his mother tell him he is not a good son.  He indicated that he no longer panics (because he has gotten to the point of just not caring) and that no one comes to his house.  

Several lay statements were submitted in support of the Veteran's claim for service connection for PTSD.  

In a March 2006 letter, the Veteran's wife reported that when they go to a theater they must sit in the back, so no one sits behind them, and near the outside aisle; that the Veteran never hunts after his experiences in service; and that he suffers from depression and anger management.  See statement from C.W.  

In two separate November 2006 statements, an individual with an illegible signature who appears to be one of the Veteran's former employees, reported that he witnessed several incidents during which the Veteran snapped and went into a fit of rage with uncontrollable temper and resulting altercation with individuals other than him.  

The evidence prior to the grant of service connection for PTSD also included December 2006 letters from Commerce Bank of Kansas City, which informed the Veteran that his personal accounts and business contracts were being terminated due to irreconcilable differences and statements he had made.  The Veteran was advised not to enter any Commerce Bank property.  It also included an undated statement received on January 31, 2007, from the Veteran's mother.  She reported that the Veteran was confrontational and argumentative, that he became extremely hostile on a regular basis, that he did not like to go to her house, that he had become less caring and preferred to be alone, that he constantly remembered his in-service sexual assault, that he had to sit in the back of the theater on the outside seat and must sit facing the door when they go out to eat, and that he had had bouts of depression so severe he has said he would be better off dead.  See statement from B.W.  

Since service connection for PTSD has been in effect, the Veteran has reported the following in support of his claim for increased ratings: that his PTSD has been chronic and severe since 2004, rendering him unable to sustain gainful employment and causing him total occupational impairment; that he stopped working in July 2003 as a result of his PTSD; that discrete periods of slight improvement are normal fluctuations associated with any psychiatric condition; that the June 2008 and February 2010 VA examination reports document symptoms indicative of 70 and 100 percent ratings; that he has severe impairments in social functioning; and that his condition has continued to decline over time.  See statements in support of claim dated February 2009, October 2009 and May 2010; June 2009 notice of disagreement.  The essence of these contentions is that the Veteran has not been employed at any time since PTSD was granted, and as a result of his PTSD, such that he is totally impaired in the occupational sense.  In the May 2010 statement in support of claim, the Veteran requested a 100 percent rating for PTSD going back to February 24, 2004, or a 70 percent rating and a grant of entitlement to TDIU going back to February 24, 2004.  

In an April 2013 statement in support of claim, the Veteran asserted that the medical evidence throughout the appeal period consistently shows symptoms of "grossly inappropriate behavior" due to "danger of hurting self or others" and "impaired impulse control" as contemplated by a 100 percent schedular rating.  He also asserts that lay statements indicate others have consistently observed his violent behavior throughout the appeal period.  The Veteran contends that his poor impulse control and extremely violent behavior is confirmed by the evidence of record and has made him both a danger to himself and to others throughout the appeal period such that a 100 percent rating is warranted from February 24, 2004, to June 6, 2008.   

The lay statements referenced by the Veteran in his April 2013 statement include statements from his wife, son, and someone who had known him since he was four years old, all dated in March 2013.  

The Veteran's wife reports that he had PTSD from 2004 to 2008 and she described an incident in October 2008 during which a man who was delivering something to their son provoked the Veteran, who went into a rage that she likened to The Incredible Hulk.  She reports that the Veteran forced the man to get into his truck and, when he refused to leave, the Veteran picked up a brick and beat the back panel of the truck, later throwing the brick at the truck as it was leaving.  She reports that it took the Veteran an hour to calm down and that this was one of many fits she had witnessed since their June 1968 wedding.  See statement from C.A.W.  

The Veteran's son reports that he has lived with the Veteran's PTSD since he can remember and related that they got into numerous fights between 2004 and 2005 when they were constructing a building.  He indicated that these fights involved shoving and pushing and, on one occasion, the Veteran threw a quart paint can at him.  The Veteran's son also reported witnessing the Veteran beat on a car window after a man locked himself inside to try to get away from the Veteran, sometime in 2006.  See statement from W.W.  

N.I. reports that she was like a second mother to the Veteran and that from 2000 to 2008, they talked about things that had happened to him and the Veteran told her he had problems controlling his temper and would get into verbal assaults.  She indicated that he used to be a fun loving person prior to service but was not anymore.  

Pursuant to the General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411 (2012)  

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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 evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships.  Id. 

Lastly, a 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name.  Id. 

The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Rather, all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV, are to be considered.  See 38 C.F.R. § 4.126.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, then the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Federal Circuit has embraced the Court's interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  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 on the basis of social impairment.  38 C.F.R. § 4.126(b). 

A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV).

A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

A GAF of 51 to 60 is defined as 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).

A GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

A GAF of 71 to 80 is defined as if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  

A GAF score generally reflects an examiner's finding as to the Veteran's functioning score on that day and, like an examiner's assessment of the severity of a condition, is not dispositive.  Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a) (2012). 

Prior to discussing specific evidence in this case, the Board notes that it has reviewed all the evidence in the Veteran's paper and Virtual claims files and although it 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.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence); see also Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). 

The evidence of record dated between February 24, 2004, and December 31, 2006, consists of medical evidence, all from VA, and lay evidence in the form of statements from the Veteran and those who know him, to include a March 2006 letter from the Veteran's wife and two separate November 2006 statements from an individual with an illegible signature who appears to be one of the Veteran's former employees.  It also includes two December 2006 letters from Commerce Bank of Kansas City and other statements from the Veteran that are dated after the relevant timeframe, but relate to his contention that he has not been employed at any time since PTSD was granted, and that he is totally impaired in the occupational sense as a result of his PTSD.  There is also additional lay evidence dated after the relevant time frame, but which describes symptomatology during the relevant timeframe, namely a March 2013 statement from the Veteran's son, who describes incidents he witnesses and was a part of between 2004 and 2006, and a March 2013 statement from N.I., who reported communicating with the Veteran between the relevant dates about some the problems caused by his PTSD.  The lay evidence was discussed in detail above.  

The Veteran underwent a VA mental disorders examination in August 2004, at which time his claims folder was available for review.  In pertinent part, he reported termination from several jobs after his discharge from service due to conflict.  He reported self-employment from 1987 to the present as a real estate investor.  He indicated that he had been less efficient and frequently procrastinates due to increasing concern over his children's health problems.  The Veteran reported the following symptoms in the previous year: memories of stressful experiences in service; difficulty sleeping; increased irritability; psychological distress upon exposure to cues, and depression.  He reported that "nothing seems to be going right...seems like it's just one thing after another."  The Veteran reported that he had been married since 1968 and described his relationship with his wife as good.  His relationship with his children, a 27 year old son and a 25 year old daughter, was strained and that he frequently got into arguments with them about their health.  He denied having any close friends or socializing with others unless it is related to business.  In his free time, the Veteran enjoyed going to the movies and spending time in his yard/acreage.  He indicated that he used to have hobbies but no longer participated in those activities.  The Veteran denied being involved in mental health treatment.  It was noted that he helped care for his elderly mother.  

Examination showed no impairment of thought process or communication, delusions or hallucinations, inappropriate behavior, or suicidal and homicidal ideation.  His personal hygiene and activities of daily living were normal and he was oriented to person, place, and time.  Mood was described as depressed and anxious, and sleep impairment in the form of feeling groggy and tired with low energy and motivation was noted, but there was no memory loss or impairment and speech patterns were normal.  The Veteran showed no obsessive or ritualistic behavior, denied a history of panic attacks, and was noted to have normal impulse control.  Axis I diagnoses of chronic adjustment disorder with mixed anxiety and depressed mood and some features/symptoms of PTSD were made.  A GAF score of 60 was assigned.  

A March 2005 VA mental health primary intake assessment record shows that the Veteran complained of anger, being fired from every job due to problems controlling his temper, trouble sleeping/insomnia, re-experiencing traumatic events, inability to focus, avoiding people, irritability, problems with losing his temper, poor energy level, and flashbacks.  He reported having frequent panic attacks when arguing with people, including his son, and described numbing, to include feeling burnt out and lacking empathy.  The Veteran reported he had been married only once and that his marriage had lasted 37 years.  He denied peer support but reported family support from his mother, wife and children.  Leisure activities included going to the movies.  It was noted that he was currently working.  Mental status examination revealed the Veteran's mood to be angry, sad, and tearful.  His affect was sad.  Thought content was organized, and he denied having auditory or visual hallucinations as well as suicidal or homicidal ideation.

A May 2005 VA psychology consult report indicates that clinical interview revealed the Veteran presented casually dressed.  His mood was depressed and anxious, affect was anxious, eye contact was fair, and speech was goal-directed. The Veteran denied having hallucinations and also denied suicidal or homicidal ideation.  He reported living with his wife.  The Veteran gave a history of being sexually assaulted while in the military.  He reported intrusive memories and intense psychological distress at exposure to cues, to include physiological reactivity on exposure to cues (heart racing, sweating).  He also reported avoidance of trauma-related stimuli, to include avoidance of reminders of trauma, avoidance of places and activities, inability to recall or amnesia for certain aspects of the trauma, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and a sense of foreshortened future.  The Veteran also reported sleep disturbance, irritability or outbursts of anger, difficulty concentrating or paying attention, and hypervigilance.  He was diagnosed with PTSD.
The Veteran reported having no desire or drive to do anything in July 2005.  He indicated that his children blamed him for their health problems, but also reported that they call him about everything that causes them trouble.  See psychiatry note.  

A July 2006 psychiatry note reveals that the Veteran reported several difficulties in his life, including financial problems that were aggravated by a banker who loaned him money.  He admitted to writing statements indicating a desire to harm the banker, but denied actual intention to harm the banker or anyone else.  In a July 2006 addendum, it was noted again that the Veteran reported that he would not harm anyone, but admitted having a lot of anger and being angry about not getting disability for himself.  An August 2006 VA treatment record reported that the Veteran's only friend was a friend from high school who was also in the military.  Another August 2006 VA treatment record reported that the Veteran and his friend had set up billboards around town to talk to Veterans about exposure to Agent Orange.  In November 2006, it was noted that the Veteran was active in Veterans' advocacy activities and that he denied being suicidal or homicidal.  See psychiatry note.  

VA treatment records dated after the August 2004 VA examination reveal that the Veteran received some mental health treatment, though the treatment was not substantial.  In those records where the Veteran reported symptoms associated with his mental disorder, the following were noted: ongoing intrusive recollections of the in-service sexual assault; feelings of revulsion and anger; sleep disturbances; and nightmares.  In those records dated after the August 2004 VA examination where mental status examinations were conducted, the Veteran was reported to be cooperative; alert; talkative; and with obvious high emotion, especially when talking about his children's medical problems.  The Board notes that the Veteran attended a diabetes group class in January 2006 and June 2006, mental health group therapy in March 2006 and May 2006, and group treatment for nutrition in July 2006.  

The preponderance of the evidence of record does not support the assignment of a rating in excess of 30 percent for PTSD prior to January 1, 2007.  As an initial matter, the Board notes that only one GAF score was assigned during the relevant timeframe, namely a score of 60 made at the time of the August 2004 VA mental disorders examination, which, as noted above, represents moderate symptoms or moderate difficulty in social, occupational, or school functioning.  See DSM-IV.  The Board has considered this GAF score in conjunction with the subjective symptoms reported by the Veteran prior to January 1, 2007, to include complaints of intrusive memories, impaired sleep, irritability, distress, depression, anger, avoidance, flashbacks, inability to focus, panic attacks, difficulty concentrating, hypervigilance, and nightmares.  It does not find, however, that a rating in excess of 30 percent is warranted prior to January 1, 2007.  

Importantly, the Veteran reported working as a real estate investor at the time of the August 2004 VA mental disorders examination and was reportedly working at the time of the March 2005 VA mental health primary intake assessment, such that the Board does not find his later assertions that he stopped working in July 2003 as a result of his PTSD to be credible.  

In addition, during the August 2004 VA examination, and in other treatment records dated prior to January 1, 2007, the Veteran reported remaining married to the same woman he had married in 1968; having a relationship with his two children, though he described it as strained while also reporting that they called him whenever something was causing them trouble; getting enjoyment out of going to the movies; helping to care for his elderly mother; and getting family support from his mother, wife and children.  In addition, although the Veteran denied having any close friends or socializing with others unless it was related to business, this indicates that the Veteran was able to socialize for business purposes.  Moreover, the Veteran mentioned having a friend from his high school days, with whom he had set up billboards around town, and N.I. reported that they spoke frequently during the relevant timeframe.  Lastly, the Board notes that the Veteran reported being active in Veterans' advocacy groups and that he was able to attend group classes related to treatment for diabetes, nutrition, and mental health, between January 2006 and July 2006.  This evidence does not support a finding of difficulty in establishing and maintaining effective social relationships.  

The Board acknowledges the lay reports from the Veteran and others who know him, as well as the December 2006 letter from Commerce Bank of Kansas City, that reference his impaired impulse control, one of the symptoms listed in the criteria for a 70 percent rating under Diagnostic Code 9411.  It also acknowledges the objective medical evidence of impaired affect, impaired mood, and impairment of motivation.  However, in addition to the evidence described in the preceding paragraph, which indicates the Veteran was able to maintain some social contacts and was working in some capacity during the timeframe prior to January 1, 2007, the preponderance of the evidence reveals normal and goal-directed, rather than circumstantial, circumlocutory, or stereotyped speech; only occasional panic attacks, rather than panic attacks more than once a week; no impairment of thought process; organized thought content; and no memory loss or impairment, rather than impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks).  In addition, the Veteran consistently denied delusions, hallucinations, and suicidal or homicidal ideation and there was no inappropriate behavior noted during mental status examination.  

In light of the evidence discussed in the preceding four paragraphs, the Board finds that the severity of the Veteran's overall disability more nearly approximates the already-assigned 30 percent rating from February 24, 2004, to December 31, 2006.  38 C.F.R. § 4.7.  A 50 percent rating is not warranted for PTSD prior to January 1, 2007.  

The medical evidence of record dated from January 1, 2007, to June 6, 2008, consists mostly of VA treatment records.  There is also lay evidence in the form of an undated statement received on January 31, 2007, from the Veteran's mother, detailed above, which describes the Veteran's symptomatology during this timeframe, and a March 2013 statement from N.I., who reported communicating with the Veteran during this period about some the problems caused by his PTSD.  The evidence also consists of statements from the Veteran, which although dated after the relevant timeframe, relate to his contention that he has not been employed at any time since PTSD was granted, and that he is totally impaired in the occupational sense as a result of his PTSD.  The lay evidence was discussed in detail above.  
A January 2007 psychiatry note reveals that the Veteran's wife accompanied him to his session and that they reported a worsening of sleep problems, more vivid and troubling nightmares, and more frequent difficulty with intrusive recollections of combat experiences.  It was noted that the Veteran's PTSD was severe and prevented employment.  In March 2007, the Veteran again reported that his only friend was a friend from high school who was also in the military.  See primary care note.  

A May 2007 psychiatry note reveals that the Veteran's wife again accompanied him to his session, at which time continuing medical problems that had occurred to him, as well as to his children, was discussed.  The Veteran reported recurrent intrusive thoughts concerning the in-service sexual trauma, nightmares, unwanted emotional responses, avoidance of certain activities, numbing of responsiveness to some activities, and excessive vigilance.  The examiner noted that the Veteran was not a danger to himself or others.  

An August 2007 psychiatry note reveals that the Veteran reported not being able to work due to difficulties with breathing, chronic pain, and emotional instability.  It was also noted that he had erratic emotional responses to stress, impaired impulse control, and memory loss.  He also had intrusive recollections of the aspects of his service.  The examiner indicated that the Veteran was seen as having a psychiatric disability that is severe and renders him unemployable.  He was not suicidal or homicidal.  A September 2007 psychiatry note reveals that the Veteran was not able to work due to medical and psychiatric disorders and that he was not suicidal or homicidal.  

The Veteran underwent a psychological evaluation related to his claim for SSA benefits in February 2008.  It was noted that he requested his wife attend the examination, as she is commonly present during all of his appointments.  The Veteran was neatly dressed in casual winter clothes.  It was obvious that he had trouble trusting anyone, and he appeared older than his stated age.  He was ill at ease when he heard a helicopter fly over the building.  In pertinent part, the Veteran reported that he started having emotional problems in 2003 and was unable to work.  He had been married for 40 years and lived in isolation with his wife, preferring not to make friends.  The Veteran reported anger management problems and exploding in anger if he does not take his prescribed medications.  He had road rage when he drove and reported an incident when he became enraged with a neighbor, who called police.  His wife reported that he easily angered in public but that she does not tolerate him becoming angry with her, threatening to return his verbal assaults as strong as he dishes it out if he even thinks about it.  

The Veteran reported that he was depressed most of the day nearly every day and did not remember a time when he was happy.  He had lost interest in activities he once enjoyed and most days, he did not want to do anything.  The Veteran reported a history of suicidal ideation, sometimes wondering why he should continue living.  It was noted that he had found some purpose in life by maintaining an Agent Orange hotline and was actively involved in advocacy for Agent Orange victims.  The Veteran reported disturbed sleep almost every night and disturbing dreams that awaken him two to three times a night.  He will frequently awake screaming.  He indicated sleeping three to four hours at night and two hours during the day.  The Veteran indicated he felt tired all the time.  Usually he does not want to do anything.  He had multiple flashbacks everyday, which were triggered by the smell of diesel fuel, helicopters, the sight of blood, car accidents, difficult situations, or any instance where he believed his integrity might be questioned.  He felt a lot of guilt for helping to kill people.  

The Veteran reported being suspicious that others are trying to exploit him and that he had witnessed other people trying to take advantage of him and other Veterans.  He indicated that if it were not for his wife, he would be living on the street.  He reported being unable to independently take care of himself and living his days filled with feelings of terror and anger and that people cannot be trusted.  He denied having any friends and reported that he must protect himself and his family from others.  He dares not confide in anyone other than his wife.  The Veteran often carried grudges against people who had treated him poorly in the past and it was not easy for him to forgive someone who had insulted or hurt him.  He often felt like people were trying to attack his character or reputation and often had to defend himself because people criticized or attacked him.  Sometimes he suspected that people he was close to were not faithful to him.  He sometimes worried that people he cared about might betray him because it had happened in the past.  To him, people were just irritating and everything bothered him.  

The Veteran reported that he tended to easily forget details when he attempts to complete a task, though he finishes projects a little at a time.  He indicated that he cannot tolerate being around people and if he is around a group, he tends to withdraw.  If he does go out to eat with his wife, he has to eat facing the door.  He refuses to go into crowded stores and will sit in the car while his wife shops.  

The examiner reported that at first, the Veteran presented as an angry, suspicious person.  It was noted that moment-by-moment, his anger and suspicion diminished as the examination progressed.  He was noted to be cautiously trusting by the end of the examination.  He reported a longing to be independently self sufficient, that he had lost motivation for happiness in life, and that he desired to live the rest of his days in relative isolation.  

Mental status examination revealed that the Veteran was oriented to year, season, day, date and month, city, county, state and country.  Problems with short-term memory were noted but long-term memory appeared intact for most major events.  Intelligence appeared to be in the average range from his choice of words and command of the English language.  He did not manifest symptoms of a thought disorder, was not a danger to himself, others or property, but was unable to manage his own affairs as he depended on his wife for assistance.  Axis I diagnoses of chronic PTSD; impulse control disorder, not otherwise specified; and major depressive disorder without psychotic features, were made.  A GAF score of 45 was assigned.  

The Veteran continued to discuss continued psychiatric difficulties related to service during VA treatment in March 2008 and April 2008.  On both occasions, it was noted that he was not suicidal or homicidal.  See psychiatry notes.  The April 2008 note indicates that the Veteran was in stable psychiatric condition overall and reported devoting a lot of time and energy to bringing the issue of the effects of exposure to Agent Orange to the attention of the public.  

A May 2008 psychiatry note reveals, in pertinent part, that the Veteran reported a precipitous decline in his mental and emotional condition following his in-service sexual assault and reported becoming "gun shy" and not trusting people.  It was noted that to this day, the Veteran had emotional difficulties that impair his functioning, and was guarded, suspicious, avoided close contact with people, had painful and intrusive recollections of being sexually violated, and had sleep disturbances and nightmares.  

The preponderance of the evidence of record does not support the assignment of a rating in excess of 50 percent for PTSD between January 1, 2007, and June 6, 2008.  As an initial matter, the Board notes that only one GAF score was assigned during the relevant timeframe, namely a score of 45 made at the time of the February 2008 SSA psychological evaluation.  As noted above, this score represents serious symptoms or any serious impairment in social, occupational, or school functioning.  See DSM-IV.  The Board has considered this GAF score in conjunction with the subjective symptoms reported by the Veteran between January 1, 2007, and June 6, 2008, to include complaints of impaired sleep, nightmares, intrusive recollections/thoughts, avoidance, numbing, hypervigilance, erratic emotional responses, impaired impulse control, memory loss, anger, road rage, depression, loss of interest in activities, flashbacks, guilt, suspiciousness, lack of trust in others, guarding, and isolation.  It does not find, however, that a rating in excess of 50 percent is warranted between January 1, 2007, and June 6, 2008.  

The Board acknowledges that the Veteran reported a history of suicidal ideation at the time of the February 2008 SSA psychiatric evaluation.  During VA treatment during this timeframe, however, he consistently denied suicidal ideation.  The Board does not find the Veteran's report made at the time of the February 2008 evaluation to be credible.  The Board also acknowledges that the Veteran was not working during this timeframe and that psychiatric notes dated in January 2007 and August 2007 indicate his PTSD was preventing employment.  These findings, which appear to be based on the Veteran's reported history rather than an assessment by the treating psychiatrist, are not afforded any probative value.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion).  In addition, a September 2007 psychiatry note indicates that the Veteran was unable to work due to both medical and psychiatric problems, rather than solely due to his PTSD.  

The Board acknowledges the lay reports from the Veteran and others who know him that reference his impaired impulse control.  It also acknowledges the Veteran's report that he would not be able to function without the help of his wife, and the objective medical evidence of impaired short-term memory.  Importantly, however, the Veteran's wife accompanied him to several VA mental health sessions, as well as the February 2008 SSA evaluation, the Veteran again reported maintaining a friendship with a friend from high school, and it was during this timeframe that N.I. reported frequent communication with the Veteran.  The Veteran also indicated that he maintained an Agent Orange hotline and was actively involved in advocacy for Agent Orange victims.  He and his wife also reportedly dined outside of the home and went to the movie theater.  These reports do not support a finding of an inability to establish and maintain effective relationships.  

In addition to the foregoing, the Veteran was consistently able to effectively communicate, rather than there being evidence of any impairment of speech; he was oriented to year, season, day, date and month, city, county, state and country, rather than being spatially disoriented; he had average intelligence; there was no indication of interference with routine activities due to obsessional rituals; and there was no indication that he had neglected his personal appearance and hygiene.  

In light of the evidence discussed in the preceding three paragraphs, the Board finds that the severity of the Veteran's overall disability more nearly approximates the already-assigned 50 percent rating from January 1, 2007, to June 6, 2008.  38 C.F.R. § 4.7.  A 70 percent rating is not warranted for PTSD from January 1, 2007, to June 6, 2008.  

The evidence of record dated as of June 7, 2008, consists of VA treatment records, records associated with the Veteran's claim for benefits from the SSA, and a March 2011 psychiatric evaluation conducted by Dr. B.C.  It also includes statements from the Veteran regarding his symptomatology and ability to function, and several lay statements that are dated after June 7, 2008, but which relate to incidents observed by these individuals during the relevant timeframe.  The lay evidence submitted by individuals other than the Veteran was discussed in detail above but, in summary, includes a March 2013 statement from the Veteran's wife relating an incident that she reported took place in October 2008, and a statement from N.I., who reported communicating with the Veteran through 2008 about some the problems caused by his PTSD.  

At this juncture, the Board notes that it previously determined in its August 2011 decision that the Veteran was entitled to a TDIU effective June 7, 2008.  Therefore, it can be said he has been totally impaired in the occupational sense as of this date.  Given the foregoing, the Board will limit its discussion of the Veteran's occupational status to what was discussed during psychological evaluations performed on or after June 7, 2008.  Any reference to employability in treatment records will not be included as that point is moot.  

The Veteran underwent a VA mental disorders examination on June 7, 2008, at which time his claims folder was available for review.  He was interviewed with his wife and denied any psychiatric hospitalizations, though he did report psychiatric treatment through VA.  The Veteran reported problems with feeling lonely, anxiety in crowds, hypervigilance, angry outbursts, road rage, and occasional crying episodes.  In terms of occupational functioning, it was noted that the Veteran had a commercial rental property company that was now solely in his wife's name.  He indicated that he had problems with concentration, memory, lack of motivation, fatigue, and depressed and anxious mood, which interfered with his ability to manage property.  It was noted that there was some benefit from medication treatment.  

Mental status examination revealed that the Veteran was alert, oriented times three, and cooperative.  He maintained adequate eye contact, his thought process was goal-directed, and thought content was devoid of audio or visual hallucinations and suicidal or homicidal ideation.  The Veteran presented with a euthymic mood and restricted range of affect.  The examiner determined that he met the criteria for PTSD and that he responded in a logical manner during the session.  There was no impairment of thought processes or communication, no delusions or hallucinations, no inappropriate behavior, and no suicidality or homocidality.  

The Veteran admitted that he would not engage in daily hygiene and grooming activities without the insistence of his wife.  He reported that he had no motivation to get out of bed but does so with his wife's encouragement.  Memory loss/impairment in the form of forgetting names and telephone numbers was reported.  Impulse control problems in the form of road rage (to include verbal altercations with motorists whom he motions to pull of the road after they engaged in a perceived vehicular offense against him) and verbal aggression (such as yelling, cursing, and screaming) against relatives and strangers, was noted.  No obsessive or ritualistic behavior was endorsed or observed and speech patterns were ok.  The Veteran reported experiencing monthly panic attacks and indicated that his mood was anxious on a regular basis.  

Symptoms of PTSD related to the in-service sexual assault included intrusive memories, nightmares, psychological and physiological reaction to cues about the trauma, feelings of detachment, restricted range of affect, markedly diminished interest in activities, irritability, sleep disturbance, hypervigilance, survivor guilt, and exaggerated startle response.  The Veteran became emotional and began to get a little agitated during discussion of his PTSD symptoms; however, he did not escalate and quickly recovered to baseline, although he continued to be tearful and sad while describing his PTSD symptoms.  The Veteran was also noted to experience a daily depressed mood and to be bothered by multiple nighttime awakenings (getting about four to five hours of sleep per night resulting in being tired and irritable).  

The Veteran was no longer involved much in his investment business due to problems with concentration, depression, and symptoms of PTSD.  It was noted that he had been married for 39 years with a good relationship overall.  His wife was noted to be quite supportive.  The Veteran reported daily contact with his two children, though he indicated that there was some strain in their relationship due to his irritability.  He also had a strained relationship with his mother due to his irritability.  The Veteran also reported recently having an urge to hit a relative, but walked away before engaging in physical contact.  He denied having any friends and leisure activities and reported avoiding crowds.  The Veteran denied making any attempts at suicide since his last evaluation, but did report experiencing suicidal ideation on a weekly basis without plan or intent.  

The examiner made the following summary statement of the Veteran's psychosocial functional status: he experiences daily depressed mood, regular anxiety, and monthly panic attacks.  His sleep is disturbed and he is tired and irritable.  His social functioning is impaired by psychiatric symptoms as evidenced by aggression while driving, verbal aggressiveness, irritability that results in strained interpersonal relationships, panic and anxiety, depressed mood, social withdrawal, and lack of friendships.  Occupational functioning is impaired by psychiatric symptoms as evidenced by recently releasing ownership of investment properties to his wife due to his inability to adequately manage the company due to problems with concentration, memory, depressed mood, limited motivation to get out of bed, irritability, and fatigue/loss of energy.  The examiner noted the previous diagnosis of adjustment disorder with some features of PTSD and reported that the Veteran met the criteria for a full diagnosis of PTSD.  A GAF score of 50 was assigned.

A June 2008 primary care note reveals the Veteran's trouble with temper.  A July 2008 psychiatric note reveals that the Veteran reported experiencing labile moods, crying spells, irritability and nightmares related to continuing and worsening symptoms of PTSD.  It was noted that he was not suicidal or homicidal.  He was also found not suicidal or homicidal in psychiatry notes dated April 2009, June 2009, February 2010, August 2010 and October 2010.  The Veteran was also noted to not be a danger to himself or others in psychiatry notes dated March 2010, May 2010 and July 2010.  

Records associated with the Veteran's application for SSA benefits reveal that the Veteran provided some conflicting information when filling out paperwork in November 2008.  More specifically, he reported shopping in stores every day for about 15 minutes, and indicated that he went to the gas station, grocery store and post office on a regular basis, though he later indicated that he never went anywhere except the grocery store.  The Veteran also noted in another section that he went into town to run daily errands, to include checking to see that his 88 year old aunt is ok and taking her to the store if she needs to go.  The Veteran's wife also filled out paperwork and indicated that the Veteran took care of his 88 year old aunt, who lived by herself, and oversaw his mother, who took care of herself in a nursing home.  The Veteran's wife also reported visiting his mother at the nursing home on a weekly basis.  

Other SSA records reveal that the Veteran cried a lot during a November 2008 interview.  It was also noted that he was very distraught throughout the interview and that just about every question upset him in some way or another.  He took a very long time to answer questions but his wife, who accompanied him, was able to assist him and get him back on track since he tended to also ramble with his answers. 

Other records associated with the Veteran's application for SSA benefits reveal that a February 2009 mental residual functional capacity assessment determined that the Veteran's ability to remember locations and work-like procedures; to understand and remember very short and simple instructions; to carry out very short and simple instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to work in coordination with or proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to ask simple questions or request assistance; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; to respond appropriately to changes in the work setting; to be aware of normal hazards and take appropriate precautions; and to travel in unfamiliar places or use public transportation was not significantly limited.  The Veteran's ability to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; and to set realistic goals or make plans independently of others was moderately limited.  There was no evidence of limitation in the Veteran's ability to understand and remember detailed instructions.  A rating of functional limitations revealed mild restriction of activities of daily living, moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace, and no limitation due to repeated episodes of decompensation, each of extended duration.  

An August 2009 psychiatry note reveals that the Veteran was accompanied by his wife and was intermittently tearful during the visit, congruent with difficult topics of conversation.  He was not suicidal or homicidal.  In November 2009, it was reported that the Veteran was still hampered by disturbances of mood and thinking caused by the effects of traumatic events during service.  See psychiatry note.  His psychiatric condition was noted to be stable the following month; the Veteran was not a danger to himself or others.  See December 2009 psychiatry note.  

In an October 2009 statement, the Veteran's treating psychiatrist reported that he had been treating the Veteran since 2006 and that he had extreme instability of mood, problems interacting with people, poor concentration, intrusive recollections of adverse events, and sleep disturbances.  See psychiatry note.  

The Veteran underwent a VA review examination for PTSD in February 2010, at which time his claims folder and medical records were reviewed.  Outpatient treatment for his mental disorder was noted but there was no hospitalization.  Current treatment was in the form of anti-depressant and anti-anxiety medication.  It was also noted that the Veteran attended group education/therapy as he could and that he could not afford individual therapy.  The effectiveness of his treatment was noted to be fair and it was also noted that treatment prevented him from committing suicide.  

The Veteran attended his examination with his wife, to whom he had been married for 42 years.  It was noted that his two children lived close but that he did not see them very often.  The Veteran reported not getting along/fighting with his son all the time.  He denied having any friends.  The Veteran described activities and leisure pursuits to include getting up, eating and letting the dogs out.  He reported that his aim was to just get through the day.  He indicated that he could not read because he could not see and that he was having more difficult seeing the television.  The Veteran denied a history of suicide attempts and a history of violence/assaultiveness.  He denied any significant changes in social status over the past two years.  The Veteran reported that his wife remained with him most of the time, that he did very little socially, and that he was not working.  He denied any alcohol or substance abuse.  

Mental status examination revealed that the Veteran was casually dressed in disheveled clothes.  Psychomotor activity was lethargic, speech was unremarkable, his attitude toward the examiner was irritable, affect was constricted and mood was labile.  Attention was intact and the Veteran was oriented to person, time, and place.  Thought process was unremarkable but thought content was positive for suicidal ideation.  There were no delusions and the Veteran was noted to understand the outcome of behavior and to be of average intelligence.  Insight was noted to be that the Veteran understood that he had a problem.  It was noted that the Veteran reported that he could not sleep because after he falls asleep, he wakes up regularly and when he wakes up, he thinks about things that keep him awake.  He reported feeling very sleepy during the day.  There were no hallucinations, inappropriate behavior, or obsessive/ritualistic behavior.  The Veteran reported panic attacks, but was unable to indicate how often they occurred and would not venture a guess.  There were no homicidal thoughts but the Veteran reported suicidal ideation and thoughts about one to two times per week, maybe more.  Impulse control was noted to be poor but there were no episodes of violence.  The examiner noted that the Veteran was able to maintain minimum personal hygiene and that there was no problem with activities of daily living.  The examiner also noted that the Veteran found cooperating very difficult and stated that he felt miserable from the pain and temperature, but was unable to give some examples.  Remote memory was normal but recent and immediate memory was mildly impaired.  The Veteran reported that he will go into a room to get things and forget what it was he went to get.  

The Veteran reported persistent re-experiencing the traumatic event by recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.  He also reported persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness such as efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; restricted range of affect; and a sense of a foreshortened future.  The Veteran also reported persistent symptoms of increased arousal, such as difficult falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and exaggerated startle response.  The onset of the symptoms was chronic and there were no remissions or capacity for adjustment during remission.  The Veteran also reported that he continued to be angry, had difficulty being around others, and is suicidal on a weekly basis.  In addition, his physical problems were noted to significantly be affecting how he felt.  The Veteran was noted to be unemployed, but not retired, and he indicated that he will fight and does not care about things or about what he says or who he says it to.  He stated that he was just tired of all the "bullshit" and did not need to be around others.  

An Axis I diagnosis of PTSD was made and a GAF score of 40 was assigned.  In summary, the examiner reported that the Veteran had changes in functional status and quality of life since the last examination related to performance in employment, family role functioning, physical health, social/interpersonal relationships, and recreation/leisure pursuits.  The Veteran and his wife reported that he had gotten more verbally aggressive, had deteriorated in physical health, had stopped caring how he interacted with others, and would sometimes just wander off.  He also had regular suicidal ideation.  The Veteran reported that he could do very little due to the combination of his physical and mental symptoms, reported experiencing daily depressed mood, regular anxiety, and panic attacks.  His sleep was disturbed and he was tired and irritable.  His social functioning was impaired as evidenced by aggression while driving, verbal aggressiveness, irritability that results in strained interpersonal relationships, panic and anxiety, depressed mood, and social withdrawal.  Prognosis was poor.  
A psychiatric evaluation conducted by Dr. B.C. in March 2011 reveals that Dr. C. performed a thorough review of medical records and related documentation regarding the Veteran's PTSD and that the records provided for review were consistent with severe, disabling symptoms of PTSD that have rendered the Veteran unable to work and unemployable since 2004.  His reported symptoms and history were noted to be consistent with the natural course of his mental illness and it was noted that in addition to his fully disabling psychiatric condition, the Veteran also had multiple physical conditions.  Dr. C. identified several records reviewed, to include the August 2004 VA examination, the March 2005 mental health clinic intake note, the July 2006 psychiatric note, the January 2007 letter from the Veteran's mother, the June 2008 VA examination, outpatient VA treatment records dated in August 2007, June 2009, August 2009, October 2009, and November 2009, the February 2010 VA examination, and a November 2010 statement of the case in which the claim for entitlement to a TDIU was denied.  The findings reported in those records and transcribed by Dr. C. will not be included as they have been reviewed and discussed in detail above.

Dr. C. reported conducting an interview of the Veteran, during which he was able to provide substantial additional clinical information.  He described his functioning prior to joining the service and Dr. C. indicated that while his functioning after he left service appeared to have significantly declined, he did not experience the onset of symptoms until later when he was in his 40s.  He developed increasing symptoms of PTSD that became increasingly disabling, reaching the point that he could no longer work in any capacity by 2004.  Dr. C. indicated that the Veteran's symptoms are consistent with the definition of PTSD including recurrent and intrusive distressing recollections of the event.  In the Veteran's case, this includes intrusive thoughts about his sexual assault and the injured and dead soldiers he witnessed during service.  He stated that these intrusive thoughts occur "all the time," but particularly when he is alone.  He reported intermittent nightmares about these events and both intense psychological distress and physiological reactivity to internal and external cues that remind him of the traumas.  He is isolative and reports symptoms of decreased enjoyment of activities.  He has clear symptoms documented over time of all of the persistent symptoms of increased arousal including problems with sleep, irritability and anger outbursts, difficulty concentrating, hypervigilance and an exaggerated startle response.  His comorbid symptoms of anxiety and depression have also escalated over time.  

Dr. C. noted that six months prior to the interview, the Veteran seriously considered shooting himself, placing a loaded gun in his mouth.  He was dissuaded by his wife, who pleaded with him not to shoot himself by the thought that he would leave his wife to bury him without any insurance or money, making her financial situation even worse.  Dr. C. also noted that the clinical documentation provided for review also noted less severe suicidal thoughts occurring one to two times per week.  The Veteran's aggressive behaviors were also consistent with his PTSD.  He described multiple incidents of road rage, including pulling another driver from their car over an incident that occurred in the course of driving that made him angry.  He also described multiple incidents such as one that occurred at a local convenience store several days prior to the interview, during which it appeared he became verbally and almost physically aggressive with another patron after little provocation.  The Veteran told Dr. C. that "if someone pushes me I don't take it."  This irritability may be further exacerbated by some degree of paranoia.  For instance, the Veteran described other incidents where he became angry and threatening towards some Spanish-speaking patrons in public because he thought they might be saying something negative about him.  This possible paranoia was also evidenced by a story the Veteran related about a billboard he had funded related to Agent Orange, when shortly after the billboard was posted, the IRS came after him for an amount of money that he felt was grossly increased over his real tax liability.  

Dr. C. reported that the Veteran's functional impairment secondary to his PTSD is substantial and present to such a degree that he could not reasonably get and maintain any employment.  He expressed feeling very upset that he cannot work.  He sleeps poorly and only gets out of bed and performs basic hygiene at home with significant prompting from his wife.  He leaves the house most days only because his wife essentially forces him to do so.  This consists almost entirely of going to VA appointments and the grocery store.  He no longer enjoys activities and functions primarily with prompts and supports from his wife.  Note that in public settings where his irritability and anger present a significant problem, his wife frequently intervenes, de-escalating the situation by helping him calm down and leave the area.  He is very despairing about his poor level of functioning.  Prior to the onset of severe PTSD symptoms, the Veteran successfully sold real estate for a number of years.  He has now "lost everything" and is upset that he and his wife have to rely on his daughter for a place to live.  The Veteran also described significant deficits in memory and concentration secondary to his PTSD.  He frequently has difficulty maintaining a train of thought and forgets things routinely.  

Dr. C. indicated that efforts to treat the Veteran's PTSD had been successful at preventing hospitalization.  The Veteran felt that he had benefitted from the medication and therapy he had received through VA and was very positive about his relationship with his treating psychiatrist.  It was noted that he had attended a group therapy program for PTSD, but said that his participation had been somewhat hampered by financial concerns related to accessing and traveling to treatment.  The Veteran's other multiple life stressors were also noted, to include his children's health concerns and his son's mental health issues and legal problems, which had created additional financial and emotional burdens for the Veteran and his wife.  The Veteran's multiple comorbid medication conditions, to include diabetes and its complications and problems with his back, right knee, hands and erectile dysfunction, were also noted.  Dr. C. noted that while the Veteran's PTSD symptoms alone are of such severity that they have rendered him unemployable, his multiple medical problems and psychosocial stressors have further exacerbated some of his symptoms.  

Dr. C. summarized and concluded that it was her expert medical opinion that the Veteran has chronic PTSD secondary to traumas that occurred in service and that he had been totally disabled as a result of severe PTSD since 2004.  His severe PTSD, apart from other disabilities such as diabetes, diabetic complications, and a back condition, had rendered him unemployable since at least 2004.  A GAF score of 40 was assigned.  

The preponderance of the evidence of record does not support the assignment of a rating in excess of 70 percent for PTSD as of June 7, 2008.  Although the evidence of record continues to demonstrate subjective complaints of depression; anger/outbursts/road rage; isolation/feelings of detachment; anxiety; hypervigilance; increased startle response; impaired sleep; impaired concentration; impaired memory; impaired motivation; flashbacks; nightmares; irritability; intrusive thoughts; and panic attacks, additional subjective symptomatology such as paranoia, crying spells, loneliness, and not wanting to take part in daily hygiene and grooming or to leave the house without his wife's insistence, and continued reports of suicidal ideation and impaired impulse control, there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  Rather, the Veteran has consistently been cooperative, alert, oriented, and adequately groomed with good hygiene, though he appeared in disheveled clothing to the February 2010 VA examination and the Board acknowledges that his adequate hygiene and grooming is due to his wife's insistence.  In addition, the Veteran has had only loss of recent and immediate memory, rather than of any names; his thought process has been described as goal-directed and unremarkable, rather than as grossly impaired; he has consistently denied delusions and/or hallucinations; and he has not exhibited any inappropriate behavior on mental status examination.  

The Board acknowledges that entitlement to a total disability rating for compensation based on individual unemployability was granted effective June 7, 2008, and that this supports a finding of total occupational impairment.  The Board also acknowledges that the Veteran reports severe impairment in social functioning and that he does not have any friends.  He has never asserted total social impairment, however, and the evidence of record does not support such a finding.  Rather than total social impairment at any time since June 7, 2008, the evidence points to a supportive wife, a relationship with his children and his mother, though reportedly strained, a relationship as caretaker for an elderly aunt, and a relationship with N.I.  The evidence also indicates that the Veteran interacts with other relatives, that he participated in VA group therapy/treatment for diabetes in October 2008 and March 2009, and that he and his wife were living with their daughter in March 2011.  While the Board does find that the Veteran has withdrawn socially and is socially impaired, these findings do not equate to total social impairment.  
The Board also acknowledges that in an April 2013 statement in support of claim, the Veteran asserted that the medical evidence throughout the appeal period consistently shows symptoms of "grossly inappropriate behavior" due to "danger of hurting self or others" and "impaired impulse control" as contemplated by a 100 percent schedular rating.  He also asserts that lay statements indicate others have consistently observed his violent behavior throughout the appeal period and that he is both a danger to himself and to others.  The Veteran has consistently denied homicidal ideation since June 7, 2008.  Although the Board acknowledges his report of almost becoming physically aggressive against another patron at a local convenience store and his report of having an urge to hit a relative, but walking away before he engaged in any physical contact, he has consistently denied any episodes of violence and a history of violence/assaultiveness during this time frame.  In addition, his VA treating physician noted that he was not a danger to himself or others in psychiatry notes dated March 2010, May 2010 and July 2010.  This finding is afforded high probative value.  See Cartright, 2 Vet. App. at 25.  

Lastly, the Board acknowledges that GAF scores of 40 and 50 have been assigned since June 7, 2008.  Irrespective of the GAF scores assigned during this time frame, it remains that the evidence since June 7, 2008, does not equate to a finding of total social impairment.  

In light of the evidence discussed in the preceding four paragraphs, the Board finds that the severity of the Veteran's overall disability more nearly approximates the already-assigned 70 percent rating as of June 7, 2008.  A 100 percent rating is not warranted for PTSD as of this date.  

Extraschedular consideration

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012).

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.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's service-connected PTSD picture is not so unusual or exceptional in nature as to render the 30, 50 and 70 percent ratings assigned inadequate at any time period on appeal.  The Veteran's service-connected PTSD is evaluated under the General Rating Formula for Mental Disorders, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology, to include consideration of social and occupational impairment.  38 C.F.R. § 4.130.  The Veteran's PTSD is manifested by subjective and objective evidence of social and occupational impairment.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 30, 50 and 70 percent disability ratings assigned.  Ratings in excess of 30, 50 and 70 percent are provided for certain manifestations of PTSD, but the medical evidence of record did not demonstrate that such manifestations were present in this case.  The criteria for the 30, 50 and 70 percent disability ratings assigned more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required.
Entitlement to a TDIU prior to June 7, 2008

Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012).  In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a).

In this case, PTSD is the sole service-connected disability.  In this decision, the Board has denied a rating in excess of 50 percent for PTSD prior to June 7, 2008.  Given the foregoing, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) were not met prior to June 7, 2008.  The Board must consider the provisions of 38 C.F.R. § 4.16(b), however, which provides for referral of cases for extraschedular consideration if a Veteran is unemployable by reason of service-connected disability, but does not meet the schedular requirements for consideration under 38 C.F.R. § 4.16(a) (2012).  

For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance.  Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating).  It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b).  

As noted above, the Board has determined that the criteria for the 30 and 50 percent disability ratings assigned for PTSD prior to June 7, 2008, more than reasonably describe the Veteran's disability level and symptomatology such that no extraschedular referral pursuant to 38 C.F.R. § 3.321(b) is required.

The Board also finds that the Veteran has not satisfied the requirements for extraschedular referral under 38 C.F.R. § 4.16(b).  Although the Veteran has consistently reported in written statements to VA that his PTSD has been chronic and severe since 2004, rendering him unable to sustain gainful employment and causing him total occupational impairment, and has also reported in written statements to VA that he stopped working in July 2003 as a result of his PTSD, several of the treatment records dated prior to June 7, 2008, do not corroborate this assertion.  More specifically, an April 2005 psychiatry note reveals that the Veteran reported managing an investment business and taking care of real estate and was "semi-retired, but making a living;" and a November 2005 pulmonary outpatient consult note reveals that the Veteran reported current part time employment in a real estate business in sales/investments with his son.  In addition, the Veteran reported being self-employed as a real estate investor at the time of the August 2004 VA examination and a December 2006 letter from Commerce Bank of Kansas was addressed to the Veteran at a lawn and tree service.  Given the foregoing, the Board does not find the Veteran's assertions regarding his unemployment prior to June 7, 2008, to be credible.  See Cartright, 2 Vet. App. at 25.  In addition, it appears the Veteran was able to perform the physical and mental acts required by employment.  
The Board acknowledges that the Veteran's treating psychiatrist, as well as Dr. C. in the March 2011 psychiatric evaluation, have reported that prior to June 7, 2008, the Veteran's PTSD was of such severity that it prevented employment.  It appears that these statements were based on the Veteran's report that he had not been working, which the Board has determined is not a credible history.  The Board may reject a medical opinion if it finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006).  For these reasons, the Board does not find the opinions provided by the Veteran's treating psychiatrist or Dr. C. to be of any probative value.  Extraschedular referral under 38 C.F.R. § 4.16(b) is not warranted.  


ORDER

A rating in excess of 30 percent for PTSD from February 24, 2004, to December 31, 2006, is denied. 

A rating in excess of 50 percent for PTSD from January 1, 2007, to June 6, 2008, is denied. 

A rating in excess of 70 percent for PTSD from June 7, 2008, is denied. 

Entitlement to a total disability rating based on individual unemployability for the period prior to June 7, 2008, is denied. 



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs