Citation Nr: 1327701	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  12-06 415	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to an initial rating higher than 10 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and D.T.


ATTORNEY FOR THE BOARD

Andrew Larson, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1943 to December 1945, so during World War II, and he was awarded the Purple Heart Medal among other commendations.

A February 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) granted his claim of entitlement to service connection for PTSD.  The RO assigned an initial 10 percent rating for this disability retroactively effective from September 4, 2009, the date of receipt of his petition to reopen this claim that had been previously considered, denied, and not appealed.  The RO notified him of the grant in a March 2010 letter.  In response, he submitted a statement in support of claim (VA Form 21-4138) in December 2010, so within one year of receiving notification of that decision, in part requesting "reconsideration for higher evaluation of PTSD...."  He cited his treatment at a local Vet Center as reason for increasing the rating for this disability.  The RO had him undergo another VA compensation examination in January 2011 reassessing the severity of this disability.  The RO also later obtained the report of a March 2011 consultation he had in the VA outpatient mental health clinic, and his counselor (K. T., M.A.) at the local Vet Center submitted a supporting statement as well in May 2011.  But after considering this additional evidence, the RO confirmed and continued the 10 percent initial rating for the PTSD in a decision issued later in May 2011, and this appeal to the Board of Veterans' Appeals (Board/BVA) ensued.

Since the Veteran, in effect, timely contested the initial rating assigned for his PTSD by submitting the December 2010 statement requesting reconsideration of this rating, that is, within one year of receiving notification of the decision assigning this initial rating, his December 2010 statement was tantamount to a timely Notice of Disagreement (NOD) with this initial rating.  An NOD need not contain any magic words or phrases.  See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).  Moreover, according to Gallegos v. Gober, 14 Vet. App. 50 (2000), VA should liberally interpret a written communication that may constitute an NOD under the law, rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the claimant desired appellate review, meeting the requirement of § 20.201 was not an onerous task). In making this determination, the Board also points out that the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that "no procedural requirement in the adjudication of Veterans benefits is less burdensome than the NOD ... finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review."  Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (rev'd on other grounds by sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)).

Consider also that, pursuant to 38 C.F.R. § 3.156(b), any new and material evidence received within one year of an RO decision must be considered "as having been filed in connection with the claim which was pending at the beginning of the appeal period."  See Young v. Shinseki, 22 Vet. App. 461, 466 (2009).

So this appeal concerns an initial-rating claim.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others).  It therefore is in this context that the Board is considering this claim.  But see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (extending this concept of a "staged" rating even to increased-rating claims that do not involve initial ratings).

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

The Veteran has occupational and social impairment due to mild or transient symptoms that decrease his work efficiency and ability to perform occupational tasks only during periods of significant stress; and his symptoms are controlled by continuous medication.


CONCLUSION OF LAW

The criteria are not met for an initial rating higher than 10 percent for the PTSD.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.

With respect to VA's notice obligations, because this claim concerns an appeal of an initial rating, the VCAA notice obligations were fully satisfied once service connection was granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated).


In this circumstance, according to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008) and other precedent cases, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  The RO provided the Veteran this required SOC in March 2012, citing the applicable statutes and regulations governing the assignment of disability ratings and containing discussion of the reasons or bases for not assigning a higher initial rating.  The record does not show, nor does the Veteran or his representative otherwise contend, that any notification deficiencies, even if, for the sake of argument, any have occurred, have resulted in prejudice.  See Goodwin v. Peake, 22 Vet. App. 128 (holding that the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date).

To satisfy its duty to assist, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A.  This includes assisting the claimant in obtaining necessary medical examinations and opinions.  Id.  In the disability-rating context, so once service connection for the disability has been established, this may include having the Veteran reexamined to reassess the severity of his disability - especially if he alleges a worsening of his disability since it was last rated or examined.  See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination).  See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, when a Veteran claims that a disability is worse than when originally rated or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (VA must consider the history of the disability).  See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination).  See, as well, VAOPGCPREC 11-95 (April 7, 1995).

There is no requirement, however, to have the Veteran reexamined merely because of the passage of time since an otherwise adequate examination, so not just as a simple matter of course.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

In this case, the Board concludes that the duty to assist has been met.  The Veteran's service treatment records (STRs) have been obtained, also his post-service VA and private treatment records.  He additionally was provided VA compensation examinations.  A December 2009 examination was when he was still trying to establish his underlying entitlement to service connection for his PTSD, so was primarily concerned with the etiology rather than severity of this condition.  There nonetheless were findings regarding the severity of this disability even in the report of that evaluation, and since establishing his entitlement to service connection for this disability he has undergone two additional VA compensation examinations, initially in January 2011 but also more recently in February 2012, which were focused instead on reassessing the severity of his PTSD, therefore were specifically directed at obtaining the information needed to make this necessary determination.  Two of the examiners were able to review the claims folder for the history of this disability, whereas one apparently did not have this opportunity but nonetheless was able to consider the Veteran's medical records by other means.  

And, in any event, review of the claims file is not determinative of the probative value of an examiner's opinion; most of the probative value of an opinion, instead, comes from the discussion of its underlying reasoning or rationale.  See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (a review of the claims file does not substitute for a lack of a reasoned analysis; instead, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").  This is because the history of the disability can be obtained in other reliable ways, such as by having the Veteran recount the history of his disability (assuming his statements and testimony concerning this are credible) or by having had occasion to evaluate and treat him over time to have familiarity with his situation and circumstances.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that it was based on history given by the Veteran).  As the Court reaffirmed in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  But see, too, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The reports of these VA compensation examinations, especially when considered along with the other relevant evidence in the file, provide the information needed to properly rate the PTSD according to the criteria found in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  So additional examination of this disability is not needed.  See 38 C.F.R. § 3.327(a).  And since there is no indication of any relevant evidence still needing to be obtained concerning this claim, the Board is proceeding with its consideration of this claim.


II.  Merits of the Claim

The Veteran's PTSD has been rated as 10-percent disabling throughout the rating period on appeal.  He believes he is entitled to a higher initial rating for this disability.  His PTSD is rated under the General Rating Formula for Mental Disorders - but, specifically, under 38 C.F.R. § 4.130, DC 9411.

In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130.

When evaluating a mental disorder, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Under the General Rating Formula, a 10 percent rating is warranted for PTSD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  38 C.F.R. § 4.130, DC 9411

To receive a higher 30 percent rating under the code, there must be occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  Id.


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

An even higher 70 percent rating 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 in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.  Id.

The maximum 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name.  Id.


The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  Use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.  So this is not an exhaustive list of symptoms required for a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130.  In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether he has deficiencies in most of the following areas:  work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001).

In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores contained in the DSM-IV, which clinicians have assigned.  A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).  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 bearing on occupational and social impairment.  See generally 38 C.F.R. § 4.126 ; VAOPGCPREC 10-95.

Generally speaking, the higher the GAF score, the higher the overall functioning of the individual.  A score of 61-70 illustrates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships."  DSM-IV at 46-47.  See 38 C.F.R. § 4.130.

A score of 71-80 illustrates "[i]f symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work)."  Id.

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by him or by someone else on his behalf, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning his claim.  He must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

As already alluded to, since receipt of the petition to reopen his claim in September 2009, the Veteran has had three VA compensation examinations for his PTSD, the first of which was in December 2009.  During that evaluation he reported that he was "nervous and jumpy."  He indicated he had stopped working in 2006 and that he was a widower.  He also reported hobbies of walking, reading, and watching TV.  He stated that he cooked for himself on occasion in addition to eating out.  He also stated that he had friends over to his house both socially and to help him with various tasks.  The examiner observed relaxed behavior and normal speech, with a logical and goal-directed thought process.  The Veteran denied feeling depressed or harboring suicidal thoughts.  The examiner diagnosed PTSD based on the DSM-IV criteria and reported a GAF score of 75, which is within the slight impairment range.  The examiner explained that the Veteran's psychiatric symptoms only mildly interfere with employment and social functioning, with no impairment of thought process or communication.  The examiner further explained that the Veteran's "...PTSD symptoms are transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress."

The second VA compensation examination occurred in January 2011.  The Veteran clarified that he was retired (the reason he had stopped working in 2006).  He acknowledged having a girlfriend and a hobby of fishing.  The examiner observed the Veteran's slow speech and euthymic mood, but with no indications of hallucinations or illusions.  His thought process was logical and goal directed, and he denied suicidal or homicidal ideation.  His memory was commensurate with his age and education.  He reportedly was only sleeping three to four hours a night.  He again reported being startled easily and feeling uncomfortable when reminded of the bad things that had happened to him during the war, but he indicated he no longer had nightmares.  The examiner again diagnosed "PTSD of a mild nature," with symptoms in the slight-impairment range.  The examiner reiterated that the Veteran's psychiatric symptoms only slightly impair his social functioning and mildly impair his employment functioning.  He assigned the Veteran a GAF score of 76, which was virtually identical to the score of 75 that he had received at the conclusion of his prior VA compensation examination, so consistent with that earlier score.  There was no impairment of thought process or communication.  The examiner concluded the Veteran's "PTSD signs and symptoms are transient, are mild, and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress."

The Veteran's most recent and final VA PTSD examination was in February 2012.  The examiner diagnosed PTSD and described the Veteran's occupational and social impairment as "due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication."  He assigned the Veteran a GAF score of 75, so again consistent with the prior scores.  The examiner remarked that the Veteran experienced recurrent and distressing recollections of the event, including images, thoughts, or perceptions, as well as physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.  The examiner also remarked that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with the trauma and made efforts to avoid activities, places or people that arouse recollections of the trauma.  He additionally remarked that the Veteran had feelings of detachment or estrangement from others.  The examiner indicated the Veteran experienced increased arousal in the form of difficulty falling or staying asleep, hypervigilance, and exaggerated startle response.  The examiner listed the Veteran's symptoms as including anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances including work or a worklike setting.  But the Veteran said that, with his medication, he is able to sleep 4-5 hours, which he felt was enough for him.  He also stated that he did not experience panic attacks.

Other than those VA compensation examinations for his PTSD, the Veteran also was evaluated and treated at a VA medical center (VAMC) in March 2011 for insomnia.  There, he described his sleep troubles for the prior four years, including getting one to two hours of sleep per night.  He was prescribed a new medication, which, as mentioned, reportedly has resulted in improvement of his sleep pattern.

The Veteran also submitted a September 2009 letter from a therapist.  It details what the Veteran went through in service and his struggles upon returning home.  It states he struggles with PTSD symptoms such as chronic hyper-arousal, anxiety, irritability, intrusive thoughts, patterns of avoidance, and sleep disturbance.  The therapist also notes the Veteran's struggles with grief stemming from the war, as well as the loss of his wife.

The Veteran had a hearing for this appeal in January 2012 before a local Decision Review Officer (DRO) at the RO.  He highlighted his quick startle response, stating that it did not take much to activate.  He also stated he was sleeping three to four hours a night because he was "wound up" and was taking Klonopin to help.  He noted that the witness he had brought to the hearing helped take care of him "pretty regularly."  He stated that watching certain programs on the History Channel would remind him of experiences he had in the war and make him uncomfortable and sad, which his witness confirmed.  The Veteran stated he did not like to talk about his war experiences with those that were not there and his witness stated that he gets emotional when he does talk about those experiences.  The Veteran pointed out that he had earned two Purple Heart Medals for his service and four Battle Stars.  The witness highlighted the Veteran's nervousness, even when just around his own house.  The witness also stated that it was not really possible for the Veteran to go out of his house and run errands by himself because of all of the sounds and unfamiliar surroundings, thus she was helping him as much as she could and spending a lot of time with him.  The Veteran stated that his quick startle condition made him avoid noisy places and experiences, such as Fourth of July celebrations.   He denied being depressed.

Also in the file for consideration are progress notes from the local Vet Center.  A November 2010 note indicates that a counselor there, K. T., M.A., had met with the Veteran who had questions about his benefits and disability rating.  The assessment was that he appeared to be in fair health.  He was referred to his service officer at the RO.

A December 2010 note indicates this counsel again met with him briefly to discuss his claim and holiday plans.  He was stable.  She would meet with him individually as necessary.

A March 2011 note indicates he had dropped by the Vet Center for a morning of socialization and interaction with staff and other Veterans.  He enjoyed a cup of coffee, took a nap, and then when for a walk around the neighborhood.  He was then picked up by his friend, Attorney M. S., who then returned him to his home.  He again was assessed as stable; it was pointed out that he socialized with others and enjoyed relaxing atmosphere.  He would in the future drop in as opportunities became available.

This counselor, K. T., M.A., additionally submitted a summarizing statement in May 2011, noting the Veteran was unable to travel to the Vet Center.  He was unable to drive, but on some occasions was able to acquire transportation via his friend (Ms. M. S.) who is an attorney.  On those occasions that Ms. S happens to be traveling to Manchester, she will drop him off at the Vet Center for socialization and counseling for PTSD if a counselor is available.  His lack of ability to attend treatment on a regular basis, according to K. T., does not indicate his symptoms and suffering are not severe enough to warrant more frequent counseling, and should not be construed as such.

But even acknowledging this counselor's elaborative comments, the Board finds that the overall weight of the evidence does not show the Veteran's PTSD has warranted a higher 30 percent or greater rating at any time since the filing of the petition to reopen his claim.  The preponderance of the evidence does not show occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  All of the VA compensation examiners, so without exception, described his impairment on account of his PTSD as falling within the purview of the 10 percent rating criteria.

His troubles with sleep have been well documented throughout his claims file.  The February 2012 VA compensation examiner even described this problem as "chronic sleep impairment."  However that examiner still did not believe this, overall, was tantamount to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Instead, he described the Veteran's condition as just relatively "mild or transient."  In fact, the Veteran takes medication for his sleep impairment and apparently has had some measure of success with it; even he has admitted as much.  Symptoms "controlled by continuous medication" are explicitly considered by the existing 10 percent rating for his PTSD, which, again, even the most recent February 2012 VA examiner felt best applied to the Veteran.

The same can be said for the Veteran's anxiety, which the February 2012 VA examiner also listed as a symptom of the PTSD.  But again, the examiner ultimately did not believe this placed the Veteran's constellation of symptoms into the higher rating category.  Depressed mood, suspiciousness, and mild memory loss have never been noted in any examination report, as examples.  General memory loss has been reported but, notably, attributed instead simply to the Veteran's age.

Furthermore, the Veteran has never had a GAF score lower than 75, which, as explained, according to the DSM-IV, is indicative of just transient and expectable reactions to psychosocial stressors, and only when under significant stress, with in any event no more than slight consequent impairment in his social or occupational functioning.

In addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim. He is competent, as a layman, to report on that as to which he has personal knowledge, such as nightmares, panic attacks, sleeping difficulties, anger, and irritability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  He has consistently stated that he is easily startled, has sleep issues, and feels uncomfortable recalling events from the war.  But by the same token, he also has consistently denied suffering from panic attacks and depression.

His mere statements, by themselves, do not warrant a rating above10 percent, especially considering that his rating is based not just on his personal assertions but also with correlation of these assertions in relation to the other relevant evidence in the file, so including the medical evidence that has not necessarily reflected the same or even similar level of social and occupational impairment.  The Board is charged with the duty to assess the competency, credibility, and resultant ultimate weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Competency of evidence differs from its credibility and ultimate weight in relation to the other relevant evidence.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.  But as a layman, without the appropriate medical training and expertise, he is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his PTSD in relation to the applicable rating criteria.  An examiner, including a VA compensation examiner, takes into consideration the Veteran's subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of his PTSD.  

This determination is multi-factorial, not just predicated on his lay statements and hearing testimony, but on all of the relevant medical and other evidence.  Gonzales, 218 F.3d at 1380-81 (indicating that in the third and final step of the analysis of evidence (determining competency and credibility being the first two), the Board must assess the probative value and weight of the evidence in light of the entire record.  See also Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Board therefore places more weight on the VA examiner's opinions concerning the severity of the Veteran's PTSD, than on his his and his witnesses' statements and testimony regarding the extent of his symptoms and difficulties.  His primary care counselor at the local Vet Center did not discuss in detail the extent of his symptoms, particularly in relation to the applicable rating criteria, only instead indicated the Veteran perhaps had not been seen more often at that facility merely because of his inability to always get transportation there, not such much because he does not or did not require more frequent treatment.  But merely acknowledging he could or should be treated more often does not speak to the specific type of PTSD symptoms he is experiencing, especially in terms of their frequency and severity.  So this counselor's statement also is insufficient to rebut the VA compensation examiner's conclusions regarding the severity of the PTSD.

Throughout all of his examinations and during his hearing, the Veteran indicated he had friends, including a girlfriend since the unfortunate death of his wife, and an active social life.  He reported cooking for himself on occasion and eating out frequently.  He also reported having friends help him with buying groceries and yard work.  He maintained enjoying his hobbies, including fishing and hunting whenever he could.  He also stated that he enjoyed reading, walking up to five miles daily, and watching television.  Indeed, even the progress notes from the local Vet Center bear this out, as he reportedly enjoys socializing there, is stable, and takes walks in the surrounding neighborhood, etc.,  The totality of the evidence, then, points to him living a fully functional life.


For these reasons and bases, the Board finds that the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2012).  Instead, the preponderance of the evidence is against this claim of entitlement to an initial rating higher than 10 percent for the PTSD, so this initial-rating claim must be denied.

In reaching this decision, the Board also has considered whether an extraschedular rating is warranted.  Bagwell v. Brown, 9 Vet. App. 157 (1996).  The Board finds that there is no basis for further action on this question, however, as there is no indication of an exceptional disability picture such that the scheduler evaluation for the Veteran's service-connected PTSD is inadequate.  38 C.F.R. § 3.321(b)(1).  See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (defining a three-prong test for determining whether this special consideration is warranted).  His startle response, hypervigilence, anxiety, and sleep issues are fully contemplated by the applicable code, DC 9411.  Furthermore, there is no objective evidence of record suggesting his service-connected disability markedly interferes with his employment, that is, above and beyond that contemplated by the schedular rating assigned for this disability, or as an additional example requires frequent hospitalization.  38 C.F.R. §§ 4.1, 4.15.  He is 88 years old and has been "retired" since 2006, so since he was 81 years old or thereabouts, and there is no indication his stopping working had anything to do with his PTSD.  This also means there is no express or implied allegation of unemployability on account of this service-connected disability to, in turn, warrant considering his derivative entitlement to a total disability rating based on individual unemployability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Likewise, all of the evaluation and treatment he has received for this disability has been on an outpatient basis, not as an inpatient, much less frequent inpatient.



ORDER

The claim of entitlement to an initial rating higher than 10 percent for PTSD is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs