Citation Nr: 1322147	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  09-41 462	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel



INTRODUCTION

The Veteran had active service from August 1965 to August 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas which granted service connection for PTSD, and assigned a 30 percent initial evaluation, effective from November 30, 2006.  

A statement received from the Veteran in May 2008 may reasonably be construed as a notice of disagreement with the initial rating assigned.  A timely appeal was completed from the April 2008 rating decision.  Further, new and material evidence was received within one year of issuance of notice of the April 2008 rating decision.  An October 2008 rating decision readjudicated the initial rating assigned.  38 C.F.R. § 3.156(b) (2008).  


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's posttraumatic stress disorder (PTSD) has been manifested by depression, anger outbursts, irritability, feelings of guilt, recurrent intrusive recollections, emotional distress triggered by trauma-related stimuli, sleeping disturbance with nightmares, flashbacks, anxiety, panic attacks, hypervigilance, exaggerated startle response, mood swings, impaired concentration, social isolation, feeling distant from people, emotional numbness, occasional fleeting suicidal ideation, avoidance behaviors, variable mood, and mildly restricted affect, productive of occupational and social impairment comparable to no worse than reduced reliability and productivity.



CONCLUSION OF LAW

The criteria for a 50 percent initial rating for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

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

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Here the veteran is appealing the initial rating assignment as to his PTSD. In this regard, because the April 2008 rating decision granted the veteran's claim of entitlement to service connection, such claim is now substantiated.  His filing of a notice of disagreement as to the April 2008 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  Rather, the veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished here, as will be discussed below.

The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code.  The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned.  Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue.

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's service treatment records, as well as his post service medical records, including clinical records considered by the Social Security Administration in conjunction with a claim for disability benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA examinations were conducted in June 2007, April 2008, July 2008 and October 2009.  38 C.F.R. § 3.159(c)(4).  Each examiner conducted an interview of the Veteran, and mental status examination, recorded clinical findings, and documented the Veteran's subjective complaints.  As these examinations included sufficient detail as to the current severity of his service-connected disability, the Board concludes that these examinations are adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

While the Board realizes that the last VA examination was conducted over three years ago, the Board finds that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995).  VA treatment records dated subsequent to the time of the October 2009 VA examination and the Veteran's lay statements as to his current complaints are of record.  The Board has had the opportunity to review medical and lay evidence as to the severity of the Veteran's service-connected PTSD, since the time of the October 2009 VA examination.  Thus, the Board finds that in this case the available evidence of record provides sufficient information to evaluate the level of severity of this disability.  In any event, the Veteran has neither advanced an argument that any VA examination of record was deficient in any respect, nor that he was prejudiced thereby.  Barr, 21 Vet. App. at 312.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

Law and Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2012).  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  In this case, the rating decision on appeal was the initial rating decision granting service connection for the disability at issue and assigning a 30 percent initial evaluation.  Therefore, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

For the rating period at issue in this decision - from November 30, 2006, the effective date of the award of service connection for PTSD - the Veteran's PTSD has been rated 30 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411.  Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue.  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).

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

A 50 percent rating is assigned 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 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; and difficulty in establishing and maintaining effective work and social relationships.  Id.  

A 70 percent evaluation requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as:  gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  Id.

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32].  A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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 score of 61 to 70 indicates the examiner's assessment of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and having some meaningful interpersonal relationships.  

While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130.  Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record.  

In a May 2007 VA mental health referral note, the Veteran complained of intermittent nightmares.  He reported getting "jittery" around Vietnamese people.  He also reported problems with aggression.  No suicidal or homicidal ideation, or auditory or visual hallucinations were shown.

In a June 2007 VA mental health PTSD assessment report, the Veteran reported "bad dreams about twice a week."  He also reported decreased sleep, interest, energy, concentration, and interest; and increased guilt and psychomotor.  Positive PTSD indicators included recurrent intrusive thoughts, recurrent and distressing dreams about the trauma, flashbacks, efforts to avoid thoughts and feelings associated with the trauma, restricted range of affect, and difficulty falling or staying asleep, difficulty concentrating and exaggerated startle response.  The DSM-IV diagnosis was chronic PTSD with delayed onset, and a GAF score of 45/50 was listed.

The Veteran underwent a VA PTSD examination in June 2007.  The report indicated that he had been widowed since 2001 and that he was married for 45 years, with two children.  The Veteran reported nightmares about Vietnam every 2 to 3 days.  He stated that he had flashbacks when it rained, which reminded him of the monsoon season in Vietnam.  He stated that he could see no particular functional impairment related to his Vietnam experience.  He stated that he was a driver for a wholesale company for 6 to 7 years.  He indicated that he was fired on one occasion and that he became more disturbed when his wife died.  He stated that he had a good marriage and a few friends.  He had good relationships with his children.  He indicated that his alcohol problems had led to all of his downfalls.  It was noted that the Veteran was able to engage in a normal range and variety of activities of daily living without interruption of his typical daily routine.  He enjoyed leisure activities such as fishing and sports.  On mental status examination, the Veteran was very polite and calm.  His thought process was logical, coherent and relevant, and he was articulate, verbal, well-dressed, well-groomed, and cooperative.  He exhibited good social skills and seemed intelligent.  He was fully oriented and his affect was spontaneous.  He showed good reasoning, good fund of general knowledge, no psychomotor slowing or agitation, good verbal comprehension, good concentration and good memory.  Current psychological symptoms included anxiety, panic attacks, depression, insomnia, anhedonia, nightmares, and anger control problems.  He indicated auditory hallucinations at times "calling my name."  He also indicated that he had suicidal ideation at times but stated "I am too cowardly."  The examiner noted that the Veteran's problem behaviors were his despondency over his wife's death and excessive alcohol dependency.  The examiner further noted that the Veteran's alcoholism had caused him problems in his work; however, there was no evidence or claim that his PTSD had caused him any problems.  The Veteran denied having any functional impairment with regard to his PTSD symptoms.  His PTSD symptoms included flashbacks, aggression, and aversion to Vietnamese people, as well as frequent nightmares; however, he did not indicate any avoidance symptoms other than a foreshortened future.  The examiner opined that the Veteran seemed to have PTSD features, with no true diagnosis of PTSD.  The diagnoses were alcohol dependency and depressive disorder, not otherwise specified.  The examiner assigned a GAF score of 50 for alcohol dependency and of 60 for depressive disorder.

In an October 2007 VA mental health outpatient note, the Veteran reported mood swings, nightmares, hypervigilance and occasional auditory hallucination of gun fire.  He denied mania, hypomania, anxiety, suicidal or homicidal ideation.  He also reported irritability, but denied flashbacks.  On mental status examination, the Veteran's appearance was appropriate and his behavior was cooperative, with good eye contact.  He exhibited regular speech, changing mood, euthymic and appropriate affect, linear and logical thought process, and thought content with no suicidal or homicidal ideation.  He was fully oriented and alert; he had good memory, and fair insight and judgment.  He had no gross difficulty with cognition and his concentration was good for conversation.  The diagnosis was chronic PTSD, and a GAF score of 55 was listed.

In a November 2007 VA mental health outpatient note, the Veteran reported nightmares, hypervigilance most days, anxiety about 5 to 6 times per month, occasionally sad mood, and irritability.  He denied mania, hypomania, psychosis or suicidal or homicidal ideation.  He stated that his last flashback was two months previously, triggered by rain.  He felt that he needed to "check the perimeter."  On mental status examination, the Veteran's appearance was appropriate and his behavior was cooperative, with good eye contact.  He exhibited regular speech, "good" mood, euthymic and appropriate affect, linear and logical thought process, and thought content with no suicidal or homicidal ideation, psychosis or preoccupations.  He was fully oriented and alert; he had good memory, fair insight, and good judgment.  He had no gross difficulty with cognition and his concentration was good for conversation.  The diagnosis was chronic PTSD, and a GAF score of 55 was listed.

In a December 2007 VA mental health outpatient note, the Veteran denied depression, mania, hypomania, anxiety, psychosis, or suicidal or homicidal ideation.  He stated that he had no flashbacks for about a month and no nightmares for two months.  On mental status examination, the Veteran's appearance was appropriate and his behavior was cooperative, with good eye contact.  He exhibited regular speech, "even" mood, euthymic and appropriate affect, linear and logical thought process, and thought content with no suicidal or homicidal ideation, psychosis or preoccupations.  He was fully oriented and alert; he had good memory, good insight and judgment.  He had no gross difficulty with cognition and his concentration was good for conversation.  The examiner noted that the Veteran suffered from symptoms related to trauma and depressive symptoms; his trauma symptoms were mild although they had been more severe in the past.  The diagnosis was chronic PTSD, and a GAF score of 70 was listed.

In a February 2008 VA mental health outpatient note, the Veteran denied depression, mania, hypomania, anxiety, PTSD, psychosis, suicidal or homicidal ideation, mood complaints, any new occurrence of flashbacks, or nightmares.  On mental status examination, the Veteran's appearance was appropriate and his behavior was cooperative, with good eye contact.  He exhibited regular speech, "ok" mood, euthymic and appropriate affect, linear and logical thought process, and thought content with no suicidal or homicidal ideation, psychosis or preoccupations.  He was fully oriented and alert; he had good memory, insight and judgment.  He had no gross difficulty with cognition and his concentration was good for conversation.  The diagnosis was chronic PTSD, and a GAF score of 70 was listed.

The Veteran was provided another VA PTSD examination in April 2008.  The VA examiner indicated that the claims file was reviewed.  With regard to occupational functioning, the examiner noted that the Veteran had a very sketchy interrupted occupational functioning.  He reported that most of his career was truck driving and estimated that he had 50 different jobs.  He had worked in factories on assembly lines and had gone through multiple periods of unemployment.  The longest job he had at any one job was about 4 years.  He had not worked since about 3 to 4 years previously.  The examiner concluded that the Veteran's occupational functioning over the course of his adult life had been seriously impaired more likely secondary to alcohol dependence and that PTSD symptoms contributed a mild degree to his occupational problems.

With regard to social functioning, the Veteran reported that he was married once for about 22 to 23 years; his wife was now deceased and he had two adult children.  He reported that his wife and he had a very good relationship and that he remained close with his two children.  He stated that he was somewhat withdrawn and was not very interested in socializing.  The examiner concluded that the Veteran exhibited a mild level of social impairment secondary to psychiatric symptoms and history of alcohol dependence.

The Veteran did not contend that psychiatric symptoms had prevented him from engaging in activities of daily living.  On mental status examination, the Veteran was appropriately dressed and well-groomed with excellent hygiene, and his manner of interaction was cooperative.  He exhibited rapid and somewhat pressured speech but coherent speech; clear logical and goal directed thought process; and relevant and appropriate thought content.  He denied history of delusions.  Although he described episodes of hearing people call his name and hearing other vague sounds, the examiner stated that these episodes did not appear to be sufficient to make a diagnosis of psychosis.  The Veteran reported mood swings.  His affect was expressive and somewhat anxious.  He admitted to some suicidal ideation with no plan or intent.  He denied homicidal ideation.  He was fully oriented; no deficits were noted in his fund of knowledge or short term memory although he had mild problems with long term memory.  He evidenced moderate concentration deficits.  He exhibited good social judgment skills and his level of psychological insight was somewhat superficial but improving with continued treatment.  

His PTSD symptoms included nightmares, flashbacks or intrusive thoughts, sleep disturbance, feeling guilty, avoidance behaviors, feeling distance and cut off from people, irritability, and hypervigilance.  The diagnosis was chronic mild PTSD, and a GAF score of 60 was listed.  Concerning the impact of PTSD on the Veteran's life, the examiner opined that the Veteran's history of alcohol dependence had almost certainly been more of a detriment to his functioning and success than symptoms of PTSD and that his alcohol dependence issues were separate from his PTSD.

In a May 2008 VA mental health attending note, the Veteran continued to have intrusive memories, nightmares, anxiety triggered by trauma-related phenomena, exaggerated startle response, isolation, distance from loved ones, anger control problems, and decreased concentration.  He denied any thoughts of wanting to hurt himself or others.  On mental status examination, the Veteran was casually dressed and well-groomed.  He had mildly restricted affected, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was PTSD.

In a May 2008 VA social worker note, the Veteran reported that his current symptoms of PTSD symptoms were sleep problems and nightmares.  No suicidal or homicidal ideation was shown.  

The Veteran underwent another VA PTSD examination in July 2008.  The VA examiner indicated that the claims file was reviewed.  The Veteran reported nightmares occurring 3 to 4 times per month, emotional distress triggered by trauma-related stimuli, hypervigilance, and history of aggressiveness.  He had suicidal idea at times but without any attempt to harm himself.  In regard to occupational functioning, the Veteran reported that he had never really missed work because of any mental problems.  His longest period of employment was for three years.  He last worked as a truck driver but he injured his back and was placed on Social Security disability.  With regard to social functioning, the Veteran stated that he avoided people.  Noises bothered him and he did not like to meet new people.  He indicated that he had a couple of girlfriends and a history of live-in girlfriends.  The Veteran was able to enage in a normal range and variety of activities of daily living without interruption of his typical daily routine; his leisure activities included going to movies and going fishing.

On mental status examination, the Veteran was calm and cooperative, and exhibited good social skills.  His thought process was logical, coherent, relevant and he was articulate, verbal, well-dressed and well-groomed.  He appeared intelligent and his speech was well-understood.  He was fully oriented.  He exhibited spontaneous affect, good reasoning and good fund of general information, and no psychomotor slowing or agitation.  He complained of poor short-term memory.  The examiner noted that a review of psychological symptoms resulted in endorsement of anxiety, panic, depression, insomnia, anhedonia, nightmares, racing thoughts, and anger control problems.  He indicated auditory phenomenon at times, including hearing voices calling his name, and indicated paranoia as well as suicidal ideation with no intent or attempt.  His problem behaviors were avoiding people and fear that people were against him.  He had difficulty connecting to others in his social relationships.  However, he could not name any specific functional impairment related to his occupation that was associated with emotional functioning.  The examiner opined that the Veteran had mild PTSD.  The diagnoses were depressive disorder, not otherwise specified; and mild PTSD.  It was noted that the Veteran's depressive disorder and paranoid personality features were associated with his PTSD.  The examiner noted that the Veteran's PTSD accounted for a GAF score of 60 considered in isolation.

In a July 2008 letter, a VA physician of the Mental Health Trauma Services stated that the Veteran had been seen in the clinic since December 2007 for treatment of PTSD.  It was noted that the Veteran continued to experience significant symptoms of intrusive re-experiencing (intrusive memories and vivid nightmares), avoidance and numbing, and hyperarousal (difficulty falling and staying asleep, continued irritability, continued hyperawareness of his surroundings).

In a September 2008 VA mental health attending note, the Veteran continued to have anxiety triggered by trauma-related phenomena, avoidance of trauma-related stimuli, intrusive traumatic memories, exaggerated startle response, and anger control problems.  He had not had a nightmare in over a month and denied any thoughts of wanting to hurt himself or others.  On mental status examination, the Veteran was fully oriented, casually dressed, cooperative, soft spoken and with fair eye contact.  He had mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD.

In an October 2008 VA mental health attending note, the Veteran continued to have anxiety triggered by trauma-related phenomena, avoidance of trauma-related stimuli, intrusive traumatic memories, exaggerated startle response, nightmares of trauma (once a month), emotional numbing, and anger control problems.  He denied suicidal or homicidal ideation, and noted that his PTSD group helped him significantly.  On mental status examination, the Veteran was fully oriented, casually dressed, cooperative, soft spoken and with fair eye contact.  He had "pretty good" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD.

In a January 2009 VA mental health attending note, the Veteran continued to have intrusive traumatic memories, nightmares, exaggerated startle response, and continued hypervigilance.  He admitted to an increase in anxiety symptoms.  He denied any thoughts of wanting to hurt himself or others.  On mental status examination, the Veteran was fully oriented, casually dressed, cooperative, soft spoken and with fair eye contact.  He had mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD.

An undated statement from the Veteran's sister indicated that the Veteran was suspicious, withdrawn, apprehensive, and paranoid.  She also indicated that the Veteran had insomnia and extreme depression.

In a March 2009 Decision Review Officer conference report, the Veteran reported that his PTSD had worsened since his last VA examination.  He reported depression, sleep problems, and checking on the house in the middle of the night.  He continued to go to group therapy.

In an April 2009 VA mental health attending note, the Veteran continued to have anxiety triggered by trauma-related phenomena, avoidance of trauma-related stimuli, intrusive traumatic memories, exaggerated startle response, isolation/distance from loved ones, nightmares of trauma, emotional numbing, and anger control problems.  On mental status examination, the Veteran was casually dressed and had normal speech and mildly restricted affect.  His thought process was linear, and his thought content was without psychosis or delusions.  He was not considered an imminent danger to self or others, and his insight and judgment were fair.  The assessment was symptoms of trauma-related anxiety; his symptoms continued to have a negative impact on his overall functioning.

In a June 2009 VA mental health attending note, the Veteran complained that "I'm still waiting, I keep to myself a lot."  He had mood symptoms of isolative behaviors, irritability, nightmares (1 to 3 times a month), intrusive memories, early wakening, and fair concentration.  He denied suicidal or homicidal ideation, and admitted that he had been thinking about his own mortality.  On mental status examination, the Veteran was fully oriented, casually dressed, cooperative, soft spoken and with fair eye contact.  He had "ok" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD.

In an August 2009 VA mental health attending note, the Veteran reported difficulty with sleep and occasional nightmares.  He reported that his mood was "ok."  He denied being depressed but stated that he occasionally got down when he had intrusive thoughts of Vietnam.  He denied any thoughts of harming himself or others.  He reported living alone and not working.  Objectively, the Veteran was casually dressed, cooperative, and with fair eye contact.  He had "ok" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was PTSD with continuing sleep difficulty.

Most recently, the Veteran was provided a VA PTSD examination in October 2009.  The VA examiner indicated that the claims file was reviewed.  The examiner noted that the Veteran's medication management notes suggested fluctuating symptoms but he was described as being stable on medication and his mood was "okay."  The Veteran reported that since last VA examination in July 2008, he had more depression due to increased financial problems and other medical conditions.  The Veteran stated that he felt discouraged and overall he was doing worse since his last examination.  He reported increased anxiety triggered by trauma-related reminders, avoiding thinking about Vietnam, continued nightmares, interpersonal detachment, limited affect, trouble sleeping, continued problems of anger and irritability, hypervigilance, and exaggerated startle response.  It was noted that he had a history of physical aggression, typically associated with heavy drinking, but not recently.  He also reported depressive issues, including depressed mood, anhedonia, reduced appetite, feelings of guilt and worthlessness, poor concentration and fatigue, which had been related to the loss of his wife.  He stated that on rare occasions he would hear someone yell "look out," which the examiner stated appeared to be a Vietnam-related flashback as opposed to full psychosis.  The Veteran described some paranoid personality traits.  He also stated that he had a history of passive suicidal thoughts but he had never thought to act on it and denied any recent suicidality.  He also denied homicidal thinking.  

As regards post-military occupational adjustment, the Veteran stated that he had a neurotic work history with long periods of unemployment.  He would get a job for a short time and go unemployed until the unemployment benefits ran out and then find another job.  The examiner noted that the Veteran's job instability appeared to be closely related to his alcoholism except that he lost his last job when the business closed.  The Veteran stated that after his alcohol intake increased and he started collecting Social Security Disability, he had not sought work since then.  He attributed his unemployment to his back condition.  As regards post-military social adjustment, the Veteran indicated that he was stressed out in his last marriage because of his alcoholism.  Currently, he was seeing a lady every now and then.  He had a good relationship with his sister and he had been living with her.  They had a big family and he enjoyed socializing with his family but did not have many friends outside the family.  The Veteran was able to complete normal activities of daily living without significant impairment and was fully independent except for the physical limitations due to his back problem.  He spent most of his time alone at home.  For leisure, he enjoyed fishing, watching sports on television, and playing dominoes.  He also enjoyed socializing with his extended family on a monthly basis.

On mental status examination, the Veteran was casually dressed, fairly groomed and calm throughout the examination.  He showed mildly depressed affect at times.  His thought process was logical and coherent and his social skills were fair.  He was verbal and cooperative with the examination.  He was fully oriented and exhibited fair reasoning and judgment, average fund of general information, and average verbal comprehension.  He reported that he lost concentration and had some problems with short term memory recently, which the examiner noted more likely than not related o his extensive history of alcohol dependence.  Long term memory was fair.  He did not report any major cognitive problems.  The Veteran did not describe significant improvement or worsening of his social or occupational functioning since the last examination.  He had not worked since his last job in 2003, which he attributed to a back injury and inability to continue to work as a truck driver.  The diagnoses were depression, not otherwise specified, secondary to losses; and mild PTSD on Axis I, and a GAF score of 60 was listed.

An April 2010 statement from S.A. described the Veteran's symptoms of flashbacks, nightmares and depression.

In an October 2009 VA mental health attending note, the Veteran reported occasionally having nightmares.  He reported that his mood was "ok."  He denied being depressed but stated that he occasionally got down when he had intrusive thoughts of Vietnam.  He denied any thoughts of harming himself or others.  He reported living alone and not working.  Objectively, the Veteran was fully oriented, cooperative, and with fair eye contact.  He had "ok" mood, mildly restricted affect, linear thought process, and thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD.

In his March 2010 substantive appeal, the Veteran reported symptoms of trouble sleeping, panic attacks, severe depression, intrusive thoughts, feeling of numbness, and avoidance behaviors. 

In a March 2010 VA mental health attending note, the Veteran reported being more depressed over the last couple of months.  He stated that he did not enjoy many activities that he used to for many years.  He stated that rainy weather made him think back and remember Vietnam.  He denied any thoughts of harming himself or others.  He reported trouble sleeping and nightmares about once a month.  Objectively, the Veteran was fully oriented, cooperative, and with fair eye contact.  He had "depressed" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD, with recurrent worsening of depression and insomnia.

In VA mental health attending notes, dated from July to September 2010, the Veteran's main complaints were sleeping problems and nightmares.  He endorsed PTSD symptoms of recurrent intrusive images or thoughts about the trauma, recurrent distressing dreams about the trauma, acting or feeling as if the event is recurring (flashbacks, dissociations), intense distress at exposure to cues that resemble event, and physiological reactivity on exposure to cues, efforts to avoid thoughts/feelings associated with the trauma, inability to recall important aspect of the trauma, diminished interest/participation in activities, feelings of detachment/estrangement from others, sense of a foreshortened future, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response.  On mental status examination, the Veteran was fully oriented, cooperative, and with fair eye contact.  He had "ok" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was PTSD, on medications and attending weekly group therapy.

In VA mental health attending notes, dated from March to October 2011, the Veteran reported that his mood had been better lately.  He attributed this to the changes in his medications.  He denied any thoughts of harming himself or others.  He reported having occasional nightmares, sleep difficulty, anxiety, and isolating at home.  He endorsed PTSD symptoms of recurrent intrusive images or thoughts about the trauma, recurrent distressing dreams about the trauma, acting or feeling as if the event is recurring (flashbacks, dissociations), intense distress at exposure to cues that resemble event, and physiological reactivity on exposure to cues, efforts to avoid thoughts/feelings associated with the trauma, inability to recall important aspect of the trauma, diminished interest/participation in activities, feelings of detachment/estrangement from others, sense of a foreshortened future, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response.  On mental status examination, the Veteran was fully oriented, cooperative, and with fair eye contact.  He had "ok" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was PTSD.

In an April 2012 VA mental health attending note, the Veteran reported that his mood had been fairly stable.  He got irritable once in a while but not as often as before.  He denied any thoughts of harming himself or others.  He reported trouble sleeping, some anxiety in crowds and preferring to isolate at home as much as possible.  Objectively, the Veteran was fully oriented, cooperative, and with fair eye contact.  He had "fair" mood, mildly restricted affect, linear thought process, thought content with no psychosis or delusions, and fair insight and judgment.  He was not considered an imminent danger to self or others.  The assessment was chronic PTSD.

Based on a thorough review of all of the evidence of record, as outlined above, the Board finds that the Veteran's total disability picture most closely approximates the criteria for a 50 percent disability rating throughout the rating period on appeal.  38 C.F.R. § 4.7 (2012).  

Initially, the Board notes that the VA examiners and physicians, who conducted a comprehensive psychiatric assessment of the Veteran, diagnosed PTSD, estimated that his GAF scores were 45/50 to 70, with the majority of GAF ratings being in the 50s or 60.  As discussed above, the Veteran's fluctuating GAF scores are indicative of mild to serious symptoms under the DSM IV criteria.  However, the Board observes that the Veteran has psychiatric diagnoses other than PTSD, and multiple VA examiners have agreed that the Veteran's history of alcohol dependence had almost certainly been more detrimental to his functioning than symptoms of PTSD.  In this regard, the Board notes that it is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.  Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  In this case, however, the April 2008 VA examiner clearly stated that that the Veteran's alcohol dependence issues were separate from his PTSD.  The Board particularly notes that the July 2008 VA examiner provided an opinion that the Veteran's PTSD accounted for a GAF score of 60, when considered in isolation.

Furthermore, the Veteran's symptomatology of depression, anger outbursts, irritability, feelings of guilt, recurrent intrusive recollections, emotional distress triggered by trauma-related stimuli, sleeping disturbance with nightmares, flashbacks, anxiety, panic attacks, hypervigilance, exaggerated startle response, mood swings, impaired concentration, social isolation, feeling distant from people, emotional numbness, occasional fleeting suicidal ideation, avoidance behaviors, variable mood, and mildly restricted affect correspond with a GAF score in the 50s or 60.  The Board finds that the Veteran's PTSD results in occupational and social impairment comparable to reduced reliability and productivity, thereby warranting a 50 percent rating.

However, while a 50 percent rating is warranted, the Veteran's total disability picture does not rise to the severity required for a 70 percent or higher rating at any time during the rating period on appeal.  In this regard, the Board finds it significant that the record is devoid of evidence of functional impairment comparable to obsessional rituals that interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; nearly continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; or difficulty adapting to stressful circumstances, including work or a work-like setting.  To that effect, none of the VA examinations or VA mental treatment notes shows these symptoms.  To the contrary, the Veteran has been appropriately dressed, well-groomed, fully oriented, polite, calm, and cooperative, and maintained good eye contact.  He has exhibited variable mood and mildly restricted affect; normal speech and psychomotor activity; grossly intact cognition, fair insight and judgment; and logical, coherent, relevant and linear thoughts without manic symptoms, psychosis, homicidal ideation, or delusions.  VA mental health treatment reports and VA examinations throughout the appeal period show that the Veteran had been able to pursue his normal activities of daily living without interruption or difficulty in general.

Although the Veteran has reported occasionally hearing gun fire, or someone calling his name or yelling "look out," the April 2008 VA examiner stated that these episodes were not sufficient to make a diagnosis of psychosis.  Additionally, the October 2009 VA examiner noted that they appeared to be Vietnam-related flashbacks as opposed to full psychosis.  While the record reflects that the Veteran has had intermittent suicidal ideation, most of the time, they were transient in nature and the Veteran denied current intent or plan to carry out such suicidal thoughts.  In addition, while the Board recognizes that suicidal ideation is listed as an example of symptoms warranting a 70 percent evaluation, as discussed above, the symptoms listed in the 38 C.F.R. § 4.130 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.  See Mauerhan, 16 Vet. App. at 442.

Instead, the Board has taken into consideration all symptoms of the Veteran's condition that affect the level of occupational and social impairment, including those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV).  Id.

As for social functioning, the Veteran reported social isolation.  On April 2008 VA examination, he stated that he was withdrawn and not interested in socializing.  On the July 2008 VA examination, he reported that he avoided people and feared that people were against him; he had difficulty connecting to others in social relationships.  On the October 2009 VA examination, he reported that he spent most of his time alone at home.  More recent VA mental health treatment notes dated 2011 and 2012 also reflect that the Veteran preferred to isolate at home.  However, on the June 2007 VA examination, the Veteran reported that he had a good marriage before his wife died.  He further reported that he had a few friends and maintained close relationship with his children; he indicated that his alcohol problems had led to all of his downfalls.  In July 2008, he indicated that he had a couple of girlfriends and a history of live-in girlfriends.  Further, on the October 2009 VA examination, the Veteran indicated that he was seeing a lady every now and then and that he had a good relationship with his sister and he had been living with the sister.  Although he did not have many friends outside the family, he related that he enjoyed socializing with his extended family.

With regard to occupational functioning, the record reflects that the Veteran has been unemployed since approximately 2003.  The April 2008 and October VA examination reports reflect that prior to this time, the Veteran had a "very sketchy interrupted" or "neurotic (sic)" occupational history with long periods of unemployment.  However, the examiners attributed his occupational impairment mostly to his alcohol dependence.  Further, the Veteran attributed his unemployment in part due to his back condition.

Based on the foregoing, although some degree of social or occupational impairment is shown, the evidence does not reflect occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, or total social and occupational impairment.  Id.  The Board finds it particularly relevant that multiple VA examiners characterized the level of the Veteran's social and occupational impairment due to PTSD symptoms as mild, after reviewing the Veteran's claims file and comprehensive psychiatric assessment of the Veteran.  Specifically, on the June 2007 VA examination, the examiner found no evidence or claim that the Veteran's PTSD had caused him any functional problems; in fact, the Veteran denied having any functional impairment with regard to his PTSD symptoms.  A December 2007 VA mental health provider stated that the Veteran's trauma symptoms were mild although they had been more severe in the past.  The April 2008 VA examiner concluded that although the Veteran's occupational functioning over the course of his adult life had been seriously impaired, it was more likely secondary to alcohol dependence and his PTSD symptoms contributed to a mild degree to his occupational problems.  The examiner also concluded that the Veteran exhibited a mild level of social impairment secondary to psychiatric symptoms and history of alcohol dependence.  Additionally, the July 2008 VA examiner opined that the Veteran had mild PTSD, and the October 2009 VA examiner stated that the Veteran did not describe significant improvement or worsening of his social and occupational functioning since the last examination.

Accordingly, considering the totality of the evidence, and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the next higher 50 percent disability rating, and therefore a 50 percent rating is the appropriate rating in this case.  38 C.F.R. § 4.7.  The evidence does not reflect a disability picture which more nearly approximates a degree of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, or total social and occupational impairment.  Id.  As such, a 70 percent rating or greater rating is not warranted.

Staged ratings have been considered.  While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected PTSD, the evidence of record does not show a distinct period of time on appeal during which a rating in excess of 50 percent would be warranted for the Veteran's service-connected PTSD.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular rating in this case is adequate.  The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected PTSD.  See Thun, 22 Vet. App. at 115.  The Veteran's PTSD is evaluated by the rating criteria which specifically contemplate the level of occupational and social impairment caused by this disability.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  When comparing the Veteran's psychiatric symptoms and social and occupational impairment with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the 50 percent rating assigned herein and he does not have symptoms associated with this disability that have been unaccounted for by the schedular rating assigned herein.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from PTSD with the pertinent schedular criteria does not show that his service-connected PTSD presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).

Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's PTSD.  Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.

In sum, the Board finds that the evidence is against the assignment of a rating in excess of 50 percent for PTSD under Diagnostic Code 9411, at any time during the rating period on appeal.  While the Veteran is competent to report the symptoms he experiences, and the Board finds him credible in this regard, the reported symptoms are consistent with the schedular evaluation assigned herein.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating greater than 50 percent for PTSD.  Consequently, the benefit-of-the-doubt rule is not applicable.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, in a statement dated and received in December 2008, the Veteran asserted that symptoms of the disability at issue, and a nonservice-connected back disability, render him totally unemployable.  The December 2008 claim of entitlement to a TDIU was adjudicated in a February 2010 rating decision.  No appeal was taken from that determination.  Accordingly, the Board concludes that a claim for TDIU is not before the Board for appellate consideration.


ORDER

Entitlement to a 50 percent initial rating for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs