Citation Nr: 1320811 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 08-26 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a higher initial rating for the service-connected posttraumatic stress disorder (PTSD), currently rated as 10 percent disabling prior to August 27, 2012 and rated as 50 percent thereafter. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision issued by the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a noncompensable evaluation; and denied service connection for tinnitus and bilateral hearing loss. In a rating decision issued in August 2008, the RO granted service connection for the bilateral hearing loss disability. Accordingly, this issue is no longer on appeal. In a decision issued in June 2010, the Board granted service connection for tinnitus. The Board also granted an increased rating to 10 percent for the service-connected PTSD, effective from August 18, 2005, the effective date for the grant of service connection. These determinations were reflected in a rating decision issued by the RO in July 2010. The Veteran was dissatisfied with the increase to 10 percent, and appealed that portion of the Board's June 2010 decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While the case was pending at the Court, the Veteran's attorney representative and VA's General Counsel (the parties) filed a Joint Motion to partially vacate and remand that portion of the June 2010 Board decision that assigned a 10 percent disability rating to the service-connected PTSD. In an April 2011 Order, the Court granted the parties' Joint Motion, and the case was returned to the Board. The Board subsequently remanded the case back to the RO for development pursuant to the directives set forth in the Joint Motion. The RO completed the requested development, to the extent possible, and subsequently issued a September 2012 rating decision granting an increased rating to 50 percent for the service-connected PSTD, effective from August 27, 2012, the date of the Veteran's most recent VA examination. The case was thereafter returned to the Board for appellate disposition. FINDINGS OF FACT 1. From the effective date of service connection until August 27, 2012, the Veteran's PTSD has been manifested by an overall disability picture that more nearly approximates that of deficiencies in most areas, due to moderately severe symptoms including occasional suicidal ideation, sleep problems, attention and concentration deficits, hyper exaggerated startle response, angry outbursts, irritability, suspiciousness, paranoid ideations, persistent delusions, obsessive behavior, fair impulse control, and a disregard for his appearance and hygiene. 2. Since August 27, 2012, the Veteran's PTSD has been manifested by an overall disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity, due to symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, isolative behavior, intermittent and mild impairment of memory and concentration, and anger and reports of impaired impulse control, but no specific incidents of harm to others. 3. At no time since the effective date of service connection has the service-connected PTSD been manifested by a disability picture that more nearly approximates that of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for service-connected PTSD have been more nearly approximated since the effective date of service connection until August 26, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for the assignment of a disability rating of 50 percent, but no higher, for the service-connected PTSD have been more nearly approximated since August 27, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A pre-rating letter mailed to the Veteran in January 2006 provided notice of the information and evidence needed to substantiate a claim of service connection for PTSD. In addition, another pre-rating letter was mailed to the Veteran in March 2006 which provided notice of how VA assigns disability ratings and effective dates for all grants of service connection. The notifications would also apply to the "downstream" issue of entitlement to a higher initial rating. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional notice regarding VA's duty to notify and assist the Veteran is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. That notwithstanding, the RO also sent additional correspondence to the Veteran in September 2008 in which the specific criteria pertaining to rating PTSD was provided. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. His service treatment records and VA treatment records have been obtained and associated with the record. VA psychiatric examinations were afforded to the Veteran in February 2007 and August 2012 and VA has not received any additional evidence since that time which indicates that the Veteran's condition has changed such as to warrant the scheduling of a new VA examination to reassess the symptoms and severity of his PTSD. Hence, these examinations along with the other evidence of record, provide a fully adequate basis for determining the extent of the Veteran's disability in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO substantially complied with the November 2011 remand directives. The August 2012 VA examination in particular, is adequate, as the interview with the Veteran was thorough and comprehensive. The examiner considered the Veteran's self-reported history, and provided a medical opinion based on sound medical principles, a lengthy interview with the Veteran, a review of the claims file, including all prior examination in the record, and the Veteran's self-reported history of symptoms. In addition to the examination, the RO also obtained additional treatment records identified by the Veteran. The agency of original jurisdiction (AOJ) substantially complied with the November 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Initial Disability Ratings Service connection for PTSD was granted pursuant to a February 2007 rating decision. The RO assigned an initial noncompensable disability rating from August 18, 2005. The Veteran appealed that determination. In a June 2010 Board decision, the noncompensable rating for the PTSD was increased to 10 percent, effective from August 18, 2005. As noted above, the Veteran appealed the June 2010 Board decision to the Court, and the Court vacated and remanded only that portion of the Board's decision that denied entitlement to a disability rating in excess of 10 percent for the service-connected PTSD. After completing additional development, the RO issued a September 2012 rating decision granting an increased rating to 50 percent for the service-connected PTSD, effective from August 27, 2012, the date of the most recent VA examination. Thus, the Board must consider whether a disability rating in excess of 10 percent is warranted prior to August 27, 2012; and, whether a disability in excess of 50 percent is warranted from August 27, 2012. The Veteran asserts that a 70 percent disability rating is warranted from the effective date of service connection. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 . In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the factual findings show distinct time periods during which the service-connected disability exhibits symptoms that would warrant the assignment of different disability ratings for each distinct period. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 . When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2. Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 51 to 60 are indicative of moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores between 41 to 50 reflect 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). Scores between 31 to 40 range indicate 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). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). Under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, a 30 percent disability rating is appropriate where the evidence shows that PTSD is productive of 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 normal conversation), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (i.e., forgetting names, directions, and recent events). A 50 percent disability rating is assigned for PTSD that is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is appropriate where PTSD is manifested by 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 that is 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); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is granted where PTSD is productive of 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 himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. As discussed above, service connection for PTSD was granted effective from August 18, 2005 and an initial 10 percent disability rating is assigned pursuant to Diagnostic Code 9411 effective from August 18, 2005; and, a 50 percent disability rating is assigned pursuant to DC 9411, for the period from August 27, 2012. Although the Veteran has expressed general disagreement with the assigned initial disability rating(s), he also specifically requested an earlier effective date for the assignment of the increased rating from 10 to 50 percent. However, as his appeal involves disagreement with the assigned staged ratings, the issue of an earlier effective date is moot. The Veteran was afforded a VA examination in February 2007. He denied current treatment for a mental disorder. The Veteran reported that he had been married three times and divorced twice. Currently, he had been married 14 years and got along very good with his spouse. He indicated that he had 7 children and had a very close relationship with all of them. The Veteran reported social self-restriction and denied having close friends. He disliked confiding in people, socializing, and being in big crowds. Leisure activities included operating a ham radio and fishing. The Veteran denied a history of suicide attempts or violence, or any current homicidal or suicidal thoughts. He denied problems from alcohol or other substances. He also reported that he had been employed for over 20 years and had not lost any time from work in the last 12 months. Regarding PTSD-specific symptoms, the Veteran reported experiencing: persistent re-experiencing of the traumatic events, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal. He indicated the frequency of these symptoms were at least 15 times per month, and were moderate to severe. He also reported sleep disturbances, difficulty with attention and concentration, hypervigilance, exaggerated startle response, and angry and irritable outbursts. These disturbances caused clinically significant distress or impairment with regard to social, occupational and other important areas of functioning, per the VA examiner. Objectively, the Veteran appeared to the examination in disheveled clothes and was inappropriately dressed. Psychomotor activity and speech were unremarkable. The Veteran's attitude towards the examiner was suspicious, contemptuous and irritable. His affect was constricted. He was unable to describe his mood. The Veteran was easily distracted and had a short attention span. He was unable to do serial 7's and unable to spell a word forwards and backwards. He was only to recall 2/3 objects after a 5 minute delay. The examiner noted, however, that the Veteran's memory (remote, recent, and immediate) was normal. The Veteran was oriented to time, place and person. His thought processes were unremarkable, but his thought content was indicative of paranoid ideations. The Veteran reported persistent paranoid delusions. Judgment was intact as the Veteran understood the outcome of his behavior. Regarding insight, the Veteran partially understood that he had a problem. The Veteran reported sleep impairment, weekly panic attacks, inappropriate behavior (i.e. quick temper), and obsessive/ritualistic behavior. More specifically, the Veteran reported that he was obsessive compulsive about cleanliness and having to wash his hands about "50 times a day." Impulse control was fair and he endorsed episodes of violence. He indicated that he was able to maintain minimum personal hygiene and denied any problems with activities of daily living. The examiner conducted several clinical tests for PTSD symptom severity, including the Mississippi Scale for Combat-Related PTSD, the PTSD Checklist for Combat and Non-Combat Trauma, the Minnesota Multiphasic Personality Inventory (MMPI), Substance PTSD Subscales, and Millon Clinical Multiaxial Inventory-III (MCMI3), Beck Anxiety Inventory (BAI), and the Beck Depression Inventory II (BDI2). The examiner noted that some of the protocols were consistent with PTSD signs and symptoms, but the severity was mild. However, the remaining protocols (i.e. Mississippi Scale, PTSD Checklist, MCMI3) were all consistent with a severe personality disorder. The examiner also noted that the MMPI2 was deemed invalid due to validity of scores, and reflected symptom exaggeration. The AXIS I diagnosis was PTSD, chronic, mild. The AXIS II diagnosis was personality disorder, not otherwise specified, with prominent schizoid traits, schizotypal and avoidant traits. The current GAF was 75. The Veteran reported that his concentration at work is not what it should be, that he is quick tempered, and some days just does not feel like taking care of himself. Sometimes he would just explode when one of the kids asked him something. He did not socialize a lot. He did not want to be around a lot of people and big crowds made him nervous. The examiner stated that since the Veteran had been employed for over 20 years, his PTSD appeared to have caused only minimal problems, if any, in the work setting. He further explained that the Veteran's severe personality disorder is independently responsible for impairment in psychosocial adjustment and reducing the quality of his life. The Veteran's avoidant and schizotypal features make him uncomfortable in close relationships and his cognitive and perceptual processes would be distorted in comparison to others not exhibiting this type of behavior, and his behaviors would in all likelihood be perceived by others as being eccentric. The examiner concluded that the Veteran's PTSD was not severe enough to interfere with either occupational or social functioning. In sum, the examiner believed that it was possible to separate the symptoms associated with the non-service-connected personality disorder from those associated with the service-connected PTSD; however, the examiner never provided any rationale for this opinion. The examiner never explained how it was possible to distinguish which symptoms were associated with the service-connected PTSD and which were not, particularly when the examiner noted that the validity of the psychological test results was unclear in that regard. The examiner noted that the Veteran's MMPI2 was deemed invalid due to validity scores and reflected symptom exaggeration. Additionally, the examiner noted that the remaining protocols were of questionable validity since they were self-report measures and some did not have validity and reliability scores. Moreover, the examiner concluded that the Veteran's PTSD was not severe enough to interfere either occupational or social functioning; however, earlier in the examination, with regard to the Veteran's PTSD symptoms, the examiner noted that the Veteran reported sleep disturbances, difficulty with attention and concentration, hypervigilance, exaggerated startle response, and angry and irritable outbursts. The examiner stated that the disturbances caused the appellant clinically significant distress or impairment with regard to social, occupational and other important areas of function. Thus, the February 2007 VA examiner appears to provide contradictory conclusions as to whether the Veteran's PTSD symptomatology impairs his social and occupational functioning. With regard to the Veteran's reports of periods of impaired impulse control with violence, the Veteran has never provided any specific details of any violent actions associated with his impaired impulse control, other than becoming angry without warning. Further, the examiner carried out psychological testing, which produced results suggesting that the Veteran's symptoms appeared to be exaggerated. Thus, regardless of whether or not the Veteran had a personality disorder in addition to the PTSD, the examiner felt that the overall symptomatology reported by the Veteran was exaggerated. Finally, the examiner indicated that a separate Global Assessment of Functioning (GAF) could not be provided for the PTSD and the (perceived) personality disorder. What the February 2007 examination report is lacking is a rationale for the opinion that certain symptoms are associated with PTSD and certain symptoms are associated with a personality disorder. Significantly, when it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In statements received at the RO in August 2010 the Veteran clarified that he had panic attacks and trouble sleeping nightly. The Veteran truly believed that his PTSD symptoms would diminish years earlier, but realized that he chose to harbor the illusions and thoughts because of a fear of appearing weak from friends and family for years. The Veteran indicated that his treatment records would show these findings. Also, the Veteran clarified that over the prior seven years he had blurted out within the work place which resulted in termination from six jobs and the loss of two marriages. He now realized that they were his fault because of aggression and being obnoxious within the work place and home in order to assert himself with what he now realizes s panic attacks and anxiety. The Veteran also reported recent memory problems that caused him increased anxiety. A VA progress note indicates that the Veteran was very short fused; he overreacts to mundane issues; and has had sleeping issues for years. According to the Veteran, for the past 35 years he has only slept 4 to 4.5 hours a night, then wakes up. He can fall asleep but has difficulty staying asleep. He does not use over the counter sleep aids. The Veteran denied drinking caffeinated drinks late in the day, claiming to drink only 1 cup in the morning. The Veteran denied suicidal/homicidal plans; denied sadness, and stated that it was easier for him to express anger, even in situations where he should be sad. The Veteran reported nightmares and flashbacks at least 5 times weekly waking up in a cold sweat. The Veteran reported a sporadic employment history, noting 18 jobs since he came out of service which usually lasted about 2 years and then he either quit or got fired due to anger issues. He reportedly got along well with his wife. Thereafter, the Veteran submitted an August 2011 memorandum from his private counselor (hired as a fee contractor at the Vet Center) who had been treating him for nine months prior to the date of the memorandum. The Counselor, M.Y., opined that the Veteran had deficiencies in the areas of family relations and work, judgment/thinking, and mood/emotions. According to M.Y., the Veteran was seriously handicapped in the area of family relations and other social interactions, by his emotional numbness and distorted perceptions of others. He often believed that other people were a threat when they were not. He did not have good relationships with his family members either. His outbursts of anger and rage; over minor non-consequential behavior impaired those relationships. The Veteran worried about his marriage ending. He was largely unable to experience empathy and was not able to show emotional concern for family members or other individuals. The Veteran experienced object relations deficits and had lost the ability to form healthy connectedness to others. He often formed unhealthy self-defeating interpersonal relationships. The Veteran felt other people were just a bother and believed that interaction with other people would only result in disappointment. He was anhedonic, as he had lost the capacity for joy and pleasure and instead, experienced a sense of doom and dread. According to M.Y., the Veteran was also impaired in the area of judgment/thinking. The Veteran felt that no one could understand his anguish of having been immersed in the death experience, and he believed that others (unidentified) would take advantage of him if he engaged in social interaction. He also exhibited distorted thinking in regard to having any hope of improvement; and, he experienced a strong sense of hopelessness. M.Y opined that the Veteran's survivor's guilt also distorted his thinking and self-perception, and played a large role in his becoming anhedonic. M.Y noted that the Veteran was emotionally numb, was unable to experience empathy for others and could not form lasting friendships. He did not have the ability to benefit from his emotional self or share his emotions with others, and his predominant mood was one of despair. The Veteran was unable to relax. He experienced discontent with self-comfort activities and was unable to receive nurturing, and affection for others. M.Y felt that the Veteran's condition was deteriorating and that his "distorted cognition" did not allow him to develop coping skills that he might use to offset increased hypervigilance, emotional numbness, distorted thinking, and inability to tolerate others in the world of work and social interaction. "He experienced threat where no threat exists." M.Y opined that intrusive images, impacted grief, emotional numbness, avoidance of interaction with others, survivor guilt, and distorted thinking characterize the Veteran's current mind set. The Veteran was re-examined by VA in August 2012. The examiner noted a review of the claims file, and the Board's November 2011 remand. The diagnosis was chronic, moderate PTSD. The examiner also noted schizoid, schizotypal and avoidant personality traits secondary to PTSD, but specifically indicated that there was insufficient evidence for a full diagnosis of personality disorder. Global Assessment of Functioning (GAF) was 55, with moderate symptoms with moderate difficulty in social and occupational functioning (few friends, conflicts with peers); and the Veteran did not show severe symptoms and functional impairment at present. There appeared to be some improvement with treatment. With regard to an overall disability picture, the examiner indicated, by checking the appropriate box, that the Veteran's level of occupational and social impairment was best summarized as: occupational and social impairment with reduced reliability and productivity. With regard to the Veteran's PTSD criteria, the Veteran has recurrent and distressing recollections of the traumatic events in service, recurrent distressing dreams, and intense psychological distress at exposure to internal or external stimuli. The Veteran has persistent avoidance of activities, markedly diminished interest or participation in significant activities, a feeling of detachment or estrangement from others, and a restricted range of affect. In addition, the Veteran reported difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner found the PTSD symptoms, as described, caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. For rating purposes, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, and, impaired impulse control. According to the examiner, the Veteran was able to manage his financial affairs. The examiner noted that the Veteran had been married for 19 years and had 2 previous marriages. He lived with 3 daughters (out of his 7 biological children). The Veteran was educated, with a bachelor's degree in electrical engineering and in computer science. He did contract work with cell phone tower companies doing maintenance on these and electrical work. He only accepted jobs if he can be out in the open because he does not like being in confined spaces. At the time of the examination, the Veteran was not working, but he reported intermittent work on a contract basis for the last number of years. The Veteran reported that for the last number of years he had been doing contract work, which paid well for short periods of time. When the job was completed, he took time off to look for other work. He only took jobs if he could work alone out in the open. He typically worked 3 to 6 months at a time working on cell phone tower sites. The Veteran reported that he knew a lot of people in the industry, so he was able to get work, and usually worked anywhere from 4 to 6 months out of the year. The examiner found no real change in the Veteran's occupational situation since the last examination. The main limitations with regard to employment are interpersonal interactions and increased anxiety when in a confined space. The examiner noted that this was a typical PTSD symptom. The examiner also noted that the progression of symptomatology (increased difficulty working with others and in a confined environment) appeared to coincide with the Veteran's reported difficulties on the job. While the Veteran was employed during part of the year, the overall pattern was reflective of a reduction in reliability and productivity due to symptoms which were secondary to the service-connected PTSD. The examiner administered the Minnesota Multiphasic Personality Inventory - 2. He noted a review of the February 2007 examination report and that the Veteran's MMPI from that examination produced invalid test results, with elevation on the FP scale. The examiner noted that other validity scales were within a reasonable range for interpretation, but the FP scale was elevated to a T-score of 84 which this examiner agreed, did suggest an overt attempt to present oneself in an overly negative light. The examiner noted that the other test results obtained by the February 2007 examiner were suggestive of a personality disorder in addition to PTSD; and, that the examiner diagnosed mild PTSD and a personality disorder with schizoid, schizotypal and avoidance traits, with a Global Assessment of Functioning (GAF) of 75. The examiner noted the comments and opinion on the February 2007 report with regard to the diagnosed personality disorder; however, this examiner did not agree with that diagnosis. The August 2012 examiner reasoned that there was no evidence of any significant description of pre-military or military social dysfunction or interpersonal problems that would be suggestive of a personality disorder that predated military service. The examiner further noted that despite some psychological testing indicators suggestive of a personality disorder, there were no other indicators in the Veteran's history. In this regard, the Veteran reported growing up with a normal childhood with several siblings. The Veteran made B's and C's in school and had friends. He reported a few scraps but denied any significant rule violations or a persistent pattern of getting into fights or aggression toward authority figures. Overall, the Veteran reported a positive childhood, positive young adulthood, and no significant social difficulties until after Vietnam. The examiner specifically noted that this pattern was generally consistent with what was described at the last [2007] examination. The examiner also acknowledged the August 2011 opinion of M.Y, and the various impairment from PTSD beyond what was described in the February 2007 examination report. With regard to social functioning, the Veteran reported difficulty with his previous two marriages, describing himself as "hot-headed" but unaware of it at the time. He denied physical abuse in relationships but described verbal outbursts and a hot temper. With regard to the current marriage, the Veteran's wife was 11 years younger and at the time of the examination, she and the Veteran had been married for 19 years and had 3 daughters together who were still living at home. The Veteran described the relationship with his wife as "okay." He indicated that they each do their own thing. Although he continued to have anger problems, he indicated that he has learned to manage them better through therapy and was also more aware and accepting of his problems. He was reportedly trying to make changes which his wife appreciated. The Veteran reported that he did not keep in touch with his siblings, all of whom live in Florida. He reportedly had only 1 friend, who he went to Vietnam with and who lives in his same town. He had other friends after Vietnam, but there was a slow decline in this over time. Otherwise, the Veteran reportedly kept to himself. The Veteran reported, however, that he did ride a motorcycle with some buddies, but it was not a formal club, and they were not described as good friends. The examiner noted that the Veteran was not involved in mental health treatment at the VA but his primary care doctor refilled his trazodone, which helped him with sleep. Also, the Veteran reported participating in both individual and group therapy with M.Y. He found the therapy helpful. The examination report indicates that the Veteran had no discipline issues in the military and he did not lose rank. He worked as an MP and reported that he moved up in his position fairly quickly and was shifted over to CID, investigating crimes in Vietnam. With regard to activities of daily living, the Veteran was able to complete normal activities of daily living without significant impairment and was fully independent. He did yard work, interacted with his kids, and kept up about 5 acres of property that he owned. For leisure, the Veteran enjoyed riding his motorcycle, fishing and operating a ham radio, although he had not been engaged in the ham radio hobby for a couple of years. The Veteran presented as an attractive, casually-dressed, well-groomed Caucasian male of average build. He was articulate, verbal, and generally cooperative. Rapport was well-established. When asked about this appeal, the Veteran voiced his concerns as are noted in the NOD and other statements in the claims file. Significantly, the Veteran reported to the examiner that he felt his last examination [in February 2007] was not as thorough. The examiner added that he interviewed the Veteran for 45 minutes to an hour, in addition to psychological testing. The examiner asked the Veteran a number of times during and after the interview if he had anything else to add, and at the end of the interview, he felt that all issues were covered. The examiner pointed out that the Veteran had good social skills, and estimated his intelligence as above average. Thought process was logical, coherent, and relevant without overt signs of any thought disorder. Affect was spontaneous. Psychomotor functioning was within normal limits. The Veteran was well-oriented to time, place, person, and situation. Reasoning and judgment were good. Fund of general information and verbal comprehension were estimated to be average. Concentration, short-term memory, and long-term memory all appeared within normal limits for his age and background. The Veteran reported some occasional forgetfulness, particularly if he feels anxious, but in general he has been able to function in a highly technical field. The Veteran had not had any head injuries, seizures, or strokes. When the examiner asked the Veteran about mental or emotional problems, he responded that his main problem involved anger, sleep disturbance, and social withdrawal. After questioning him about other symptoms, the Veteran described some current mild depressive symptoms, which appeared to be closely related to the PTSD, and, according to the examiner, did not warrant a separate diagnosis. The examiner acknowledged, however, that the Veteran described episodes in the past that were suggestive of major depression, and those included crying spells, anhedonia, feelings of guild, and some suicidal thoughts. He did not report any recent suicidal thoughts and that is why the examiner did not include this symptoms in the symptom checklist. The Veteran reported that in the past, however, he had intermittent thoughts of suicide, especially prior to starting treatment in 2007. The Veteran reported that he had a gun to his head at one point and was thinking seriously about suicide, but that therapy was helpful both in terms of improving his PTSD symptoms and his depression. He denied any history of homicidal thinking or psychosis. The Veteran spontaneously reported a number of PTSD symptoms including insomnia, anger, irritability, some tantrum-like outbursts, especially with his 2 previous wives, interpersonal detachment and blunting of affect. Upon further questioning about specific PTSD symptoms, the Veteran also endorsed continued intrusive thoughts, nightmares, psychological distress when he smelled certain smells that reminded him of his traumas, avoidance of anything that might remind him of the trauma including certain smells and situations, avoidance of thoughts and discussion about the trauma, diminished interest, poor concentration, some degree of hypervigilance/paranoia, and exaggerated startle. The Veteran did not describe overt psychotic symptoms but did describe some bizarre experiences associated with vivid dreams. However, the Veteran did not show signs of a thought disorder or psychosis. The Veteran described a history of panic attacks but did not describe full panic attacks at present. He described subclinical episodes of anxiety two to four times per week when he felt anxious and overwhelmed in response to general stressors in his environment. It was more pronounced when he is in a confined environment or having to work closely with others. The examiner also addressed the February 2007 examiner's diagnosis of a personality disorder. As noted above, the August 2012 examiner does not agree with the February 2007 findings in this regard. The August 2012 examiner reviewed the psychological testing in the record which admittedly was suggestive of certain maladaptive personality traits which were described in detail in the last examination, and which include symptoms associated with social withdrawal, feelings of alienation from others, some odd but nonpsychotic experiences, avoidance of social interaction or fear of judgment or rejections, and behavior such as avoiding social interaction or cutting people off. The examiner stated that while those symptoms were often associated with schizoid, avoidant, and schizotypal personality disorders, he did not see sufficient evidence suggesting a lifelong pattern of this issue or significant pre-military stressor or environment factors that would contribute to such a personality style. The examiner acknowledged these personality traits on Axis II, but he opined that those symptoms could not be solely separated from the service-connected PTSD. This was consistent with the Veteran's report of onset of symptoms in conjunction with the onset of the PTSD symptoms. The examiner concluded that he did not get a full diagnosis of a separately diagnosed personality disorder; and, therefore, the social withdrawal, alienation, and other symptoms could be part of the PTSD. With regard to the psychological testing, the examiner once again pointed out that the results of previous testing showed a pattern of overt exaggeration on the MMPI2. The examiner readministered the MMPI2 in conjunction with this examination; and, likewise found evidence of some degree of exaggeration. The examiner stated, "This brings validity into question, and this (sic) results is considered in a formulation of my overall impressions, diagnoses, and functional impairment description. While the Veteran does show signs of exaggeration, the overall pattern of responses on the test are highly consistent with PTSD (2-7-8 code type, RC7 is elevated, PK scale = T103." The examiner concluded that the evidence of exaggeration reduced the validity of the test result and brought into question the actual severity of the reported symptoms. Overall, the examiner opined that the Veteran showed evidence of social and occupational impairment with reduced reliability and productivity. The examiner reasoned that despite the Veteran's part-time employment, he did his job well. When he is in a higher stress and/or enclosed environment, he tended to have more inconsistencies and had to take breaks. Although the Veteran described a steady decline in social interactions over time, the examiner did note that the Veteran described some positive relationships that he is able to maintain. As to any discrepancies in the record regarding the Veteran's employment history, the examiner indicated that he could only provide information that was stated to him in the interview. The examiner's interpretation of the Veteran's employment status was that he voluntarily chose contract work which was short term by nature. When the examiner asked about the Veteran's work history, he did not describe being terminated from jobs; but, rather, he explained that the jobs were short-term by nature. In conclusion, the examiner found only one diagnosis, that of PTSD. He did acknowledge the Veteran's depressive symptoms, and some maladaptive personality traits, but firmly indicated that those traits did not constitute a diagnosable personality disorder. As such, the GAF score provided reflected the Veteran's overall level of functioning. Upon review and consideration of the evidence in the claims file, as summarized above, the disability picture presented by the Veteran's PTSD disorder shows that the Veteran's overall PTSD symptoms were more severe, and approximated the criteria for a 70 percent evaluation, at the time of the grant of service connection, but as of the August 2012 VA examination, it was clear that the psychiatric symptoms more nearly approximated the criteria for a 50 percent evaluation. In view of the foregoing evidence for the period prior to August 27, 2012, the evidence shows an overall disability picture manifested by deficiencies in most areas, particularly according to the Veteran's Vet Center Counselor. M.Y. appears to paint a more severe overall disability picture of the Veteran's PTSD, indicating deficiencies in most areas, including work, family, judgment, thinking and mood; pointing to symptoms of emotional numbness, distorted perceptions of others, and anger outbursts and rage which had a significant effect on social interaction with his family. The Counselor opined that intrusive images, impacted grief, emotional numbness, avoidance of interaction with others, survivor guilt and distorted thinking characterized the Veteran's mind set during that time period. Prior to the August 2012 examination, the Veteran reported suicidal ideation, paranoia, persistent delusions, obsessional rituals which interfered with routine activities, and anger outbursts/rage interfering with family relations. In addition, he had difficulty adapting to stressful circumstances and sought out work opportunities accordingly. He also was noted by the first examiner to have neglected his personal appearance. These symptoms more nearly approximate the criteria for a 70 percent rating. Thus, in resolving all doubt in the Veteran's favor, the criteria are met for the assignment of a 70 percent rating from the effective date of service connection until August 27, 2012. At that point, a VA examination report shows that the Veteran's symptoms were not as severe. The examination of August 2012 paints a less severe picture of the Veteran's overall PTSD. The VA examiner in 2012 found that the Veteran's judgment, thinking and insight were within normal limits. Further, the 2012 VA examination report specifically opined that the Veteran's overall disability picture was moderate, and resulted in occupational and social impairment with reduced reliability and productivity. The August 2012 VA examination report provided a detailed explanation of the type of employment that the Veteran found suitable given his deficiencies. Further, the Veteran no longer reported suicidal ideation or obsessional rituals nor was there any neglect of personal appearance and hygiene. Since August 27, 2012, the Veteran's anxiety disorder has been manifested by symptoms that manifest in reduced reliability and productivity and thus warrant the assignment of a 50 percent disability rating under DC 9411. In this regard, the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and, impaired impulse control. These symptoms resulted in reduced reliability and productivity. As noted in the medical evidence summarized above, the Veteran had near-constant depression, worry and anxiety but not to the extent where it affected his ability to function independently, appropriately and effectively. Although the Veteran struggles with anger and irritability, with reported verbal outbursts, no physical abusive behavior has been reported or identified. Although the Veteran has had to make occupational adjustments to accommodate his PTSD, he has been successful in doing so, particularly because he knows a lot of people in his business who can find him work on an as needed basis. While M.Y.'s August 2011 report indicated deficiencies in most areas, including work, family, judgment, thinking and mood; the VA examiner in 2012 found that the Veteran's judgment and thinking and insight were within normal limits at that time. Further, the 2012 VA examination report specifically opined that the Veteran's overall disability picture was moderate, and resulted in occupational and social impairment with reduced reliability and productivity, compared to the August 2011 report showing deficiencies in most areas. In providing an opinion as to the overall severity of the Veteran's PTSD at the time of the examination, the August 2012 examiner addresses all of the pertinent evidence of record, including the Veteran's self-reported history, whether the Veteran has a personality disorder, the validity of the psychiatric/psychological testing, the Veteran's work history and limitations, family history, including all occupational and social impairment, if any, with regard to family, work, judgment, thinking and mood. The examiner specifically indicated that he conducted a thorough interview with the Veteran as part of the examination, and even asked the Veteran if he was satisfied with the amount of time spent on the interview and examination. Even with the acknowledgment of some exaggeration of symptoms per testing results, the examiner nonetheless found that the Veteran's PTSD was moderate in degree. The findings on the August 2012 examination show that the severity of the Veteran's PTSD during that time period approximates occupational and social impairment with reduced reliability and productivity due to the symptoms manifested and the severity thereof, which was no more than moderate in degree. Thus, the assignment of a 50 percent rating is warranted for the time period beginning on August 27, 2012. The 2007 VA examiner's opinion indicated that the Veteran has a personality disorder in addition to PTSD. In this regard, the Board finds more probative the explanation of the August 2012 examiner, who found that it was very unlikely that the Veteran had a personality disorder given that there was no indication in the record prior to service or during service of any negative personality traits. Because a personality disorder is not an acquired disorder, the August 2012 examiner felt that there would have been some evidence of a personality disorder prior to the PTSD diagnosis if the Veteran did, in fact, have a personality disorder. The 2007 examiner, by contrast, presumed the Veteran had a personality disorder, without discussing the Veteran's medical history, and without providing a rationale for that opinion. The August 2012 examiner clarified that the symptoms of schizoid, schizotypal and avoidant personality traits were secondary to the Veteran's PTSD and were insufficient for a full diagnosis of PTSD. Nevertheless, the Board again notes that regardless of the diagnosis provided, the Board has considered all psychiatric symptoms manifested and the severity thereof in this decision. The Global Assessment of Functioning (GAF) scores provided by the 2007 examiner and the 2012 examiner were respectively 55 and 75. The GAF of 55 is consistent with moderate disability, which is consistent with the symptoms and the severity thereof manifested at that time. The GAF score of 75 was based on the first examiner's attempt to differentiate symptomatology due to PTSD from that consistent with a personality disorder. However, when the symptoms manifested prior to the 2012 examination are reviewed, they show that the Veteran's overall level of disability more nearly approximated that of occupational and social impairment with deficiencies in most areas including work, family relations, thinking and mood. Accordingly, the Board has determined that staged ratings are warranted in this case as the facts show that different ratings are warranted for distinct periods of time. The record reflects some of the Veteran's symptoms, such as verbal abuse, isolation, and avoidance, which are not explicitly identified in the schedular criteria. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider 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 (American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). In this case, the level of occupational and social impairment due to the symptomatology of the Veteran's service-connected PTSD is adequately reflected by a 70 percent rating from the effective date of service connection and a 50 percent rating effective from August 27, 2012. At no time during the appeal period does the evidence show total occupational and social impairment. The Veteran has always been able to communicate effectively with his doctors, has the support of his wife, and functions independently; and, although he is unable to work in certain environments, the evidence shows that he continued to obtain and maintain gainful employment as needed. The Veteran is fully oriented and he is not cognitively impaired. Thus, while the Veteran certainly exhibits symptoms of occupational and social impairment, he is not totally impaired. The evidence shows that the Veteran continued to be married to, and is living with, his spouse of 19 years. Although there is evidence showing that the Veteran's symptoms have impacted the quality of his relationship with his spouse, there is no evidence supporting that the Veteran has experienced a complete inability to establish and maintain effective relationships. While the Veteran did report delusions during the 2007 examination, this was considered in determining that the overall level of disability more nearly approximates the criteria for a 70 percent evaluation. The overall level of disability did not, at any point in time, more nearly approximate that of total occupational and social impairment. The Veteran's psychiatric symptoms are fully contemplated by the rating schedule. The Veteran's depression, anxiety, irritability and other symptoms, when considered together, more nearly approximate a disability picture that is compatible with deficiencies in most areas such as work, family relations, judgment, thinking and mood prior to August 27, 2012; and more nearly approximate a disability picture that is compatible with occupational and social impairment with reduced reliability and productively from August 27, 2012. The August 2012 examiner notes that the Veteran has occupational and social impairment, but also notes the Veteran's reports of being fully independent, doing yard work, interacting with his children, keeping up about 5 acres of property, riding a motorcycle, and fishing. The fact that the Veteran is able to engage in all activities of daily living, is able to work, and participate in meaningful activities, albeit with limited social interaction, clearly establishes that the Veteran is not totally socially and occupationally impaired. The Veteran's signs and symptoms, as discussed in detail above, fit within the rating criteria as was discussed above. There is no showing that the rating criteria are inadequate. The signs and symptoms shown in this case which were described above are contemplated by the schedular criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the Veteran's social and work situation). Moreover, the assignments of a 70 percent rating and a 50 percent rating, respectively, signifies that he has commensurate industrial impairment. Accordingly, the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Under the circumstances, there is no basis to remand this matter for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of extraschedular ratings for the service-connected PTSD. The Veteran's symptoms are fully contemplated by the schedular criteria. See Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the Veteran's symptomatology is consistent with a 70 percent disability rating and no more, under DC 9411 for the period from the effective date of service connection until August 26, 2012; and a 50 percent disability rating, and no more, under DC 9411 for the period beginning on August 27, 2012. Finally, it is noted that a TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the Veteran has reported that while he may be incapable of permanent employment, he does work part of each year, and he is able to find work that pays well in his field. Neither he nor his attorney have asserted that his employment is marginal. Accordingly, TDIU is not raised by the record. ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for the service-connected PTSD from August 18, 2005 to August 26, 2012 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 50 percent for the service-connected PTSD from August 27, 2012 is denied. ___________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs