Citation Nr: 1328058 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 05-32 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active military service from September 1965 to January 1968. Among his awards and decorations were the Vietnam Service Medal and the Combat Infantryman Badge. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which in pertinent part, granted service connection for PTSD and assigned an initial 30 percent disability rating, effective November 25, 2003. The Veteran perfected a timely appeal of the assigned rating. Jurisdiction of his case is presently with the VA RO in Jackson, Mississippi. In his September 2005 substantive appeal, the Veteran requested to testify during a hearing before a Veterans Law Judge (Board hearing), and in October 2005, requested to testify during a videoconference hearing. Then, in March 2006, he requested to testify during a personal hearing at the RO that was conducted in July 2010. In August 2010, the RO advised the Veteran by telephone that the tape on which his hearing was recorded was accidently destroyed, although notes of the hearing were of record, and that he may request another hearing. The Veteran stated he did not want another hearing and asked that his claim be adjudicated. A September 2010 record indicates that RO personnel contacted the Veteran again by telephone to clarify whether he still wished to testify during a Board hearing. He stated that he did not and again requested that his case be forwarded to the Board. The Board finds that all due process requirements were met regarding the Veteran's hearing request. In a June 2010 rating decision, the Jackson RO increased the initial rating for PTSD to 50 percent, effective March 8, 2007, awarded a temporary total rating (TTR) for PTSD from May 22, 2007 through June 30, 2007, and continued the initial rating of 50 percent for PTSD from July 1, 2007. In a March 2011 decision, the Board, in pertinent part, awarded an initial 50 percent rating for the Veteran's service-connected PTSD prior to March 8, 2007 and denied a rating higher than 50 percent for the entire appeal period. At that time, the Board remanded the Veteran's claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) to the RO for further development and adjudication. The RO effectuated the Board's March 2011 decision, assigning an initial 50 percent rating for PTSD, effective from November 25, 2003, which was the date VA received the Veteran's claim for service connection for PTSD. The Veteran appealed the Board's March 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2011 Order, the Court partially vacated that part of the Board's March 2011 decision that denied an initial rating in excess of 50 percent for PTSD for the entire appeal period, and remanded the case to the Board for further proceedings consistent with a September 2011 Joint Motion for Partial Remand. In an April 2012 decision, the Board denied the claim of entitlement to an initial rating in excess of 50 percent for PTSD. At that time, the Board again indicated that the claim for a TDIU still required development and adjudication. The Veteran appealed the Board's April 2012 decision to the Court. In an April 2013 Order, the Court vacated the Board's April 2012 decision that denied an initial rating in excess of 50 percent for PTSD for the entire appeal period, and remanded the case to the Board for further proceedings consistent with an April 2012 Joint Motion for Remand. In a May 2013 rating decision, the RO denied a TDIU. The issue of entitlement to an initial rating in excess of 70 percent for PTSD from August 17, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT 1. Prior to December 18, 2008, PTSD was manifested by dysphoric, dysthymic, depressed, irritable, somewhat constricted, or occasionally labile affect; somber and mildly dysthymic mood; poor judgment in March 2007; and difficulty establishing and maintaining effective relationships due to social isolation. 2. From December 18, 2008 through August 16, 2010, PTSD was manifested by depressed mood; constricted to flat or blunted affect; moderately impaired concentration capable of affecting short-term memory; and inability to establish and maintain effective relationships due to extremely limited social functioning. CONCLUSIONS OF LAW 1. Prior to December 18, 2008, the criteria for an initial schedular rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. With resolution of all reasonable doubt in the Veteran's favor, from December 18, 2008 through August 16, 2010, the criteria for an initial schedular rating of 70 percent, but no higher, for PTSD have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant 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). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). In this case, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (holding that where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The Board also finds that VA has complied with all assistance provisions of the VCAA. The Veteran was provided with numerous VA examinations. The evidence of record contains service treatment records, post-service VA and private outpatient and inpatient treatment records, VA examination reports, records from the Social Security Administration, and lay statements from the Veteran and family members. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Moreover, in July 2013 correspondence, the Veteran's attorney indicated that the Veteran "has no other evidence to submit, and, waives any VCAA notice errors." Criteria & Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The issue on appeal involves the Veteran's dissatisfaction with the initial rating for his PTSD disability assigned following the grant of service connection, and staged ratings are to be considered. Service connection for PTSD was granted effective from November 25, 2003, which is the date the Veteran's claim was received by VA, based on the Veteran's combat experiences and his duties as a medical corpsman while serving in Vietnam from June 1967 to December 1967. His PTSD is rated as 50 percent disabling prior to August 17, 2010 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). He contends that his PTSD meets the criteria for a higher initial rating. General Rating Formula for Mental Disorders: Rating Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name 100 Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships 70 Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships 50 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In assessing the evidence of record, the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). GAF scores ranging from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job). The symptoms listed in the relevant rating criteria are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Records from the Social Security Administration (SSA), which were received by VA in February 2006, reflect that the Veteran was determined to be disabled for SSA purposes in August 1998 due to hepatitis C. Private treatment records from B. Bundy, D.O. dated from January 1999 to January 2000 and from H. Hencock, M.D., dated from February 1996 to December 2003 reflected treatment for major depression with prescribed medications. In a June 1986 treatment record from R. McEvoy, M.D., the diagnosis included anxiety. VA treatment records dated from September 1999 to December 2002 reflected psychiatric treatment for depression with medications with GAF scores improving over time from 60 to 84. During a June 2003 VA psychiatry visit, the Veteran stated that he had not wanted to be with people for the last two months since the war in Iraq and that his wife believed he had been more moody for the last few months. He reported that he had been having nightmares and getting four hours of sleep with middle terminal insomnia. He endorsed decreased energy, irritability, easy startle response, not being able to sit facing the door in a restaurant, some paranoia, being glued to the TV when Iraq War [reporting] was going on, and decreased libido. Objectively, the Veteran was polite and cooperative with good hygiene, had no agitation or retardation, speech was okay, motor activity was normal, mood was irritable/moody with blunted affect, there was no psychosis or "[suicidal] or A ideas," and sensorium was clear. The assessment was depression and PTSD and the assigned GAF score was 58. September and November 2003 VA psychiatry notes reflect reports of similar symptoms, but with some improved sleep. In September the Veteran stated that he almost got into a fight with a truck driver; in November he reported less irritability. Objective findings were similar to those reported in June 2003 except paranoia was noted and mood was "OK" in November. Assigned GAF scores were 58. The Veteran's claim for service connection was received in November 2003. In a January 2004 statement, the Veteran's wife related that she had known the Veteran for 12 years and could see a change in him, which she believed to be related to severe depression. She indicated that she was a nurse and in doing research believed that he had "every symptom of PTSD." She stated that the Veteran was "very moody," "paranoid at times," and has had many bad dreams and awakens with clenched fists if startled. She did not believe that he was suicidal, but that the Veteran had commented "he is ready and not afraid to die." She added that he does "dangerous things because he doesn't care if he dies." She reiterated that he remained "very depressed and withdrawn." She described her knowledge of the Veteran's "many divorces," prior jobs, time in jail, fights, conflict with family, and previous alcohol and drug use that he turned to after "nobody helped him." She also indicated that while she had knowledge that the Veteran had been violent with an ex-wife, he had never been violent to her. The Veteran presented for an initial psychosocial evaluation in February 2004. He was accompanied by his sixth wife and stated that he had been married six times, twice to the same woman. He indicated they had been together for 12 years and married for two years. He endorsed experiencing paranoia and depression; he denied panic or anxiety symptoms. He reported regular contact with his two brothers but not with his sister because "she has too many problems." He indicated that he retired from his last job as a machine repair operator because he could not tolerate the Interferon [treatment for hepatitis C, which is service-connected]. On mental status examination, affect was dysphoric and irritable, limited in range, and occasionally labile. The Veteran admitted to problems with anger management, sometimes experiencing road rage; however, he and his wife believed the incidents and been reduced in number and in intensity. He endorsed paranoia, but denied audiovisual hallucinations, delusions, or suicidal or homicidal ideation. The social worker assigned a GAF score of 55. On the same day in February 2004, the Veteran met with a VA psychiatric nurse practitioner. He indicated that he does not put himself in situations where he has to deal with a lot of people and continued to experience paranoia. He described having "ok" mood, variable irritability depending on the circumstance, and some problems with his wife. He denied active suicidal ideation or plan, noting "I don't care what happens to me, but I wouldn't do anything myself." He denied homicidal ideation. Reported mental status examination findings included the following: alert, cooperative, easily engaged, well groomed, and casually and appropriately attired for the season; good eye contact; no abnormal movements seen; normal rate, rhythm, and volume of speech; constricted affect with occasional brightening, smiles; thought content and process logical and goal-directed; no overt signs of paranoia or delusional thinking; grossly cognitively intact; and good insight and judgment. A GAF score of 58 assigned. The Veteran was afforded a VA PTSD examination in April 2004. The examining psychologist indicated that he reviewed the claims file, and the examination report itself reflects a detailed review of the medical and lay evidence. The Veteran described prior PTSD symptoms and behaviors and stated that his thoughts of Vietnam had continued on a daily basis, but became somewhat less until the Gulf War in the early 1990s. He reported that the events of September 11 brought a precipitous change in intrusive thoughts of what occurred in Vietnam and survivor guilt. He acknowledged that his life was now marked by nearly constant thoughts of what occurred when he was in Vietnam, but indicated that over the years he never spoke to anyone about events in Vietnam, including his wife with whom he had been in a relationship for the past 12 years. The examiner noted that the Veteran became distressed when recalling a specific incident in Vietnam. Regarding current PTSD symptoms, the Veteran described significant social withdrawal, never really being able to get close to anyone, and a long history of hyperstartle and hypervigilance that had never really abated. He acknowledged that his deliberate social isolation and emotional distancing take "a toll on [his] marriage." He reported sleep disturbance; having two to three nightmares a month that are always of his experiences as a combat medic; having no flashbacks in many years, and when they do occur, they are usually in relation to some reminder while watching television; a long history of avoidance behaviors, but joining a motorcycle club in the last couple years; and some forgetfulness because his mind is usually thinking about events in Vietnam. He denied hallucinations, any problems maintaining personal hygiene or other basic activities of daily living. The Veteran indicated that his last job was in a factory for 18 years until 2000 when his hepatitis C and Interferon treatment prevented him from having sufficient stamina to work, and he had received Social Security disability benefits since that time. He reported being married six times and described his current marriage as "good," although there were occasional conflicts. He denied having any social friends other than his occasional contact with the motorcycle club. He stated that he enjoyed fishing and riding his motorcycle. Reported mental status examination findings included the following: spontaneous, logical, relevant, coherent, and goal-directed speech with normal rate and flow; no irrelevant, illogical, or obscure speech patterns; morose and taciturn presentation; no difficulty with comprehension; appropriate eye contact; fixed facial expression; somber mood; no restlessness or fidgeting, but some agitation when speaking of combat stressors; no irritability; no bizarre mentation described or unusual mannerisms observed; no delusional material elicited; fully oriented in all spheres; no clinically significant impairment or dysfunction in short- or long-term memory; no obsessive or ritualistic behavior described; no impairment in cognitive functioning; no difficulty focusing attention or sustaining concentration; and intact general fund of information. The diagnosis was PTSD and a GAF score of 58 was assigned. VA psychiatric and mental health treatment records dated from May 2004 to October 2005 reflected GAF scores ranging from 55 to 60. Some of the visits involved marital counseling with discussion of separation or divorce. Subjective complaints included depressed mood, insomnia, social withdrawal, poor appetite, loss of interest in most activities, and easy tendency to tears or anger, and some flashbacks (July 2005). The Veteran expressed passive death wishes on one occasion (January 2005), but denied suicidal or homicidal ideation, or psychotic symptoms. He reported some reduction in nightmares. Mental status examination findings included dysphoric, irritable mood; somewhat constricted, depressed, anxious and intermittent labile affect. Other findings included full orientation; appropriate hygiene and grooming; adequate insight and judgment; goal-directed and coherent speech with normal tone and volume; grossly intact memory; and no hallucinations or delusions. In September 2004 correspondence, the Veteran's wife again described the Veteran as very angry at times, withdrawn, and depressed. She believed that while "he would [not] deliberately kill himself, [] he takes chances and does things with the thought that he doesn't care about the consequences," taking "unnecessary risks." Lay statements received in May 2005 from the Veteran's brother and sister described his social isolation and "failed" relationships. In September 2005 correspondence the Veteran's wife explained that she and the Veteran did "not agree with the findings of his evaluations [because] they do not clearly identify the actual side effects he has endured for the last 40 years, which are only getting worse." She stated that the Veteran had "hidden the real symptoms of his PTSD." She requested a 70 percent rating for the Veteran's PTSD and believed that his disability met all of the criteria for a 70 percent rating. She identified current PTSD symptoms to include extreme suspicion at all times; "fly[ing] off the handle" when someone makes him mad; severe road rage; suicidal ideation "not in the way he would kill himself intentionally at this time, but he always makes comments about 'I'm not scared to die,' 'I'm ready to die,' or that 'I'm going to die soon, so I'm not scared of anything;'" his "conversation is very confusing" at times; impaired memory and depressed and irritable mood; constant nightmares; and neglected appearance. The Veteran underwent VA PTSD examination in November 2005 and reported that he had not worked since approximately 2000 when he was placed on Interferon and became too sick to work. He lived with his wife and her three children. His psychiatric treatment included prescribed medication and individual and marital counseling; he denied any psychiatric hospitalization. The examiner indicated that he reviewed the claims file. The Veteran reported that he was married six times and married his current wife in 2001; he argued with her about the step-children but went on outings together. He had close relationships and regular contact with several relatives (sons, brothers, his mother, and one friend). He regularly attended events at veterans' clubs and denied any suicide attempts since last examined by VA. The Veteran complained of memory problems, nightmares approximately twice a week, disturbed sleep, marital conflict about step-children, financial problems, and depressed mood. The examiner remarked that overall, the Veteran's psychiatric symptoms appeared to be of mild to moderate severity, occurring a few times a week and present over the last year. The Veteran denied any violence or assaultiveness; history of suicidal or homicidal thoughts, ideations, plans, intent, or attempts; or impulse control problems since his last rating examination. He denied any psychotic symptoms such as hallucinations, delusions, disorders of thought or communication, and none were noted on mental status examination. Mental status examination findings included the following: appropriately dressed with fair grooming and hygiene; able to independently care for his personal hygiene and other basic activities of daily living; good eye contact; established appropriate rapport; displayed no inappropriate behaviors; alert and fully oriented with average memory and concentration; fluent, well-articulated speech with normal rate and logical, relevant, coherent, and goal-directed speech patterns; mildly dysthymic mood; affect appropriate to content; no reports of panic attacks or panic-like symptoms; no obsessive or ritualistic behaviors that might interfere with routine activities; no symptoms of hypervigilance or exaggerated startle response were noted; and no symptoms of foreshortened future were reported. The diagnosis was PTSD, depressive disorder NOS, and alcohol dependence (in partial remission). The assigned GAF score was 55 for the cumulative impact of the Veteran's various psychiatric disorders, and the examiner indicated that separate GAF scores would be 59 for the Veteran's PTSD and 60 for his depressive disorder. During a March 2007 VA primary care visit, the Veteran reported feeling more depressed and "like the world is against [him]," crying for no reason, and poor appetite. He endorsed suicidal ideation and stated, "I have a pistol ready and loaded; I have four or five of them. If the mood strikes me, I'm ready to go." He denied homicidal ideation. He indicated that he found out that his ex-wife was getting remarried. He stated that his wife's adult boys were drinking and using drugs in his home, he left, and now his wife was living with her boyfriend in the Veteran's house. He reported that he had started drinking again, a half case of beer a day. The plan included walking the Veteran to mental health because he had active suicidal ideation and loaded guns. When he was seen by psychiatry the same day on March 8, 2007, he complained of increased anxiety and depression due to the loss of his wife by divorce and her re-marriage. The Veteran felt more depressed during the past four months, with sleep difficulty, anhedonia, decreased appetite and energy, increased suicidal ideation, and more seclusion. Learning that his former wife was re-marrying caused more distress and anxiety for him and worsened his suicidal ideation. He had more flashbacks of combat-related situations with easy startle and excitability. On mental status examination he was cooperative, friendly, and somewhat reserved; speech had normal volume, rate, and tone; mood was depressed; affect was dysthymic, restricted, and mood congruent with restricted range; thought process was linear and goal-directed; he denied current suicidal or homicidal ideation, contracting for safety and stating that his religion prevented him from hurting himself; no audio or visual hallucinations or delusions; fair insight; poor judgment due to recent active suicidal ideation; and intact cognition. The Veteran was hospitalized by VA for suicidal ideation and reported increased anxiety over his life situation with depression and some flashbacks. At admission, his GAF score was 20, and at discharge one week later it was 71. When seen in the VA outpatient psychiatry clinic in April 2007, the Veteran was noted to be doing much better since his inpatient treatment. He indicated that he was arranging for PTSD inpatient care at Battle Creek with a contact he had there. He was well-groomed and calm with no suicidal or homicidal thoughts and no delusions or hallucinations. He was fully oriented, cognitively stable, and had good insight. A GAF of 60 was assigned. From May to June 2007 the Veteran was treated in a month-long inpatient VA PTSD program. He complained of depression, isolation, sleep problems with nightmares and night sweats, hypervigilance, anxiety, relationship problems, increased startle response, short-term memory problems, flashbacks, and intrusive thoughts. He did not voice any suicidal or homicidal ideations. When examined at admission, he was alert and oriented with no bizarre tics or mannerisms, mood was dysthymic, and affect was responsive. During inpatient treatment he underwent psychological testing, which revealed significant depressive symptoms and anxiety and avoidance and intrusive symptoms of PTSD. At discharge, a GAF score of 45/47 was assigned. A September 2007 VA psychiatry consultation report detailed that the Veteran experienced significant symptoms of reexperiencing, including daytime intrusive thoughts and nightmares; significant avoidance and hyperarousal symptoms, including insomnia, irritability, hypervigilance, and increased startle; and significant guilt. On mental status examination, he had good hygiene and eye contact; engaged with the interviewer; displayed no evidence of anxiety; was very pleasant with no evidence of irritability; was oriented and alert with grossly normal cognition; thought content was negative for passive or active suicidal or homicidal ideation; he did not appear internally stimulated; speech had normal rate and volume with no slurring; and insight and judgment were good. The Veteran reported that his "mood was better now." The impression was PTSD of at least moderate severity; major depressive disorder appeared to be in remission. The psychiatrist remarked that it appeared that the PTSD symptoms were significantly helped by an interdisciplinary approach at Battle Creek VA and that the Veteran wanted to continue this as an outpatient. A GAF score of 55 was assigned. A December 18, 2008 VA outpatient record reflects the Veteran's complaints of combat-related nightmares three to four times a week. He was tearful, avoided people, felt hopeless and worthless, and had decreased appetite. He lost 10 to15 pounds in the last year with decreased energy level and constant fatigue. Objectively, his grooming and hygiene were fair and he was cooperative. He had fair eye contact with normal speech. His mood was depressed and his thought process was well organized. He denied suicidal thoughts and his insight and judgment were fair. A GAF score of 45 was assigned. The Veteran underwent PTSD examination again in January 2009. He indicated that he was divorced in March 2006; he was arrested for driving under the influence in December 2006, reporting that he "got drunk because of the divorce and Christmas;" and his home was foreclosed in 2008. He reported that his last marriage ended because "she let her children drink and smoke pot and they were underage" and he ended up leaving. He stated that he was currently in a relationship. He reported regular contact with his three children, seeing them often and currently living with his oldest son. He stated that when the family gets together, they talk and play poker and pool. He denied having any friends. He described having thoughts about assaultiveness, but that he would defend himself rather than assault someone. He described sleep disturbance, short-term memory that was "not too good," decreased motivation, isolation, very low energy, significant guilt "sometimes," difficulty concentrating and making decisions, some increase in how easily he gets sad, and irritability. He denied any suicidal ideation since March 2007, any homicidal ideation, or panic attacks or general anxiety. He did not report any type of ritualistic or compulsive behaviors. He added that he does have some problems controlling his impulses, but "it's not a real big effort. I get away from a problem, if I can." On mental status examination, he was clean and casually dressed; able to maintain his personal hygiene; had assistance with some of his basic activities of daily living; activity level was unremarkable; he maintained fair eye contact with cooperative and appropriate manner and appropriate behavior; speech rate was normal, but was rather soft with mumbling and difficult to understand; there was no evidence of any hallucinations, delusions, or psychotic symptoms; he was alert and fully oriented; immediate recall was good; long-term memory was intact, although he had some difficulty with dates and the sequence of events; there was some short-term memory problem with recalling information and difficulty with short-term memory assessment; ability to form concepts and abstract thinking appeared within the normal range; judgment was fair to good; he was able to understand the outcome of his behaviors and had insight into his difficulties; thought process was goal-directed; intelligence was within the normal range; mood was somewhat depressed; and affect was constricted to flat. Following a review of the claims file and clinical interview, the diagnosis was PTSD and depressive disorder NOS, and a GAF score of 48 was assigned. The examiner explained that the Veteran's depressive symptoms were associated with his PTSD. The examiner also noted that there was reduced reliability and productivity due to PTSD signs and symptoms and anxiety associated with PTSD. He added that, while the Veteran was able to perform self-care, he was encouraged and supported by his son, with whom he lived. At the close the appointment, the Veteran was given time to voice any other concerns that he did not feel were adequately addressed in the evaluation and replied that he "can't think of anything." During a March 2009 VA psychiatry evaluation, the Veteran reported PTSD severe nightmares about three to four times a week, intrusive thoughts of combat-related events, and continued hypervigilance. He indicated that his problems with anger and irritability had attenuated as he had gotten older. He reported feeling depressed; however, the examiner noted it was difficult to determine its depth as his gastrointestinal doctor felt his lack of energy and recent 10 to 15 pound weight loss was due to his hepatitis C that did not respond to three courses of antiviral therapy. The psychiatrist commented that the Veteran was so emotionally closed and isolative that he went through six divorces and his current significant other complained of it. Objectively, the Veteran was mildly situationally depressed primarily over his medical status, with no suicidal ideation and no delusions or hallucinations. A GAF score of 49 was assigned. After moving to Mississippi, the Veteran was seen by a VA psychiatric physician assistant in October 2009. The Veteran complained of nightmares, sweats, anger, depression, irritability, social withdrawal, and survivor guilt. He denied suicidal or homicidal ideation. Objectively, he was alert and fully oriented with normal eye contact, thought processes and content were organized and logical, short- and long-term memory were good, and judgment was good. A GAF score of 45 was assigned. When evaluated by a VA clinic psychiatrist at the end of October 2009, the Veteran said that he was depressed and teared up a lot. He was angry and irritable, isolated himself, felt hopeless but not worthless or helpless, and neglected his grooming and chores, but attended to his hygiene with some effort. He had an intermittent anxiety problem since the 1960s. When anxious, he sweated and had an increased heart rate. He angered easily but denied being violent. He had sleep difficulty and nightmares. Objectively, the Veteran was alert, casually dressed, and unshaven. He was fully oriented and his speech was clear, spontaneous, coherent, relevant, and normal in volume. He denied delusions, hallucinations, or suicidal or homicidal thoughts or intent. His affect was blunted. His memory, attention span, and concentration were adequate. The diagnoses included PTSD; major depressive disorder, recurrent without psychosis; anxiety disorder, NOS; and insomnia. According to a January 2010 VA outpatient psychiatry note, the Veteran said he was doing "okay" since his medications were adjusted. He felt less depression and anxiety, but still slept poorly due to recurring nightmares. He denied suicidal or homicidal thoughts or intent. He reported moving to Mississippi in July 2009 and being a loner with no friends. Objectively findings were similar to those reported in by the psychiatrist in October 2009, except affect was now subdued to pleasant. In February 2010, the Veteran told a VA social worker that he was having problems with his live-in girlfriend. He was married six times and admitted that because of his PTSD, he had angry outbursts and difficulty being around others. His tolerance level was low. He had very frequent nightmares about Vietnam when he was a medic and "things like the sound of a zipper [took] him back to zipping a body bag." He endorsed depression, but denied any suicidality or homicidal ideation. Objective mental status examination findings were not reported. The social worker assigned a GAF score of 45. An April 2010 VA psychiatry note indicates that the Veteran said he felt better and attributed that to changes in his medication. He still got depressed and anxious, intermittently, but less so. He was sleeping better but still had night sweats, which he had for many years. He also still had combat-related nightmares, but fewer with medication. Objective findings were consistent with those recently reported in January 2010. In April 2010, the Veteran's VA clinical social worker noted that he had a brighter affect and was not making statements about how bad things were. He was not suicidal and would never do that to his family and was looking forward to the summer. He believed his medications were working but not as well as he hoped. He still lacked motivation to do anything. The assigned GAF score was 55. A May 2010 VA psychiatry record indicates that the Veteran was seen with his girlfriend. He initially said he was doing pretty well. Then, he said he felt sad because his dog died. His girlfriend said the Veteran was sad before the dog's death and periodically got depressed despite taking prescribed medication. He denied delusions, hallucinations, or suicidal or homicidal thoughts. He had sleep difficulty and combat-related nightmares and reported getting anxious at least twice a week. Objective findings were consistent with those previously reported by the psychiatrist since October 2009. Notes from the July 2010 RO hearing reflect that the Veteran reported that he was married six times. He had no close friends but was close to his children. He did not like crowds and isolated himself. He believed his PTSD symptoms had worsened. See also August 2010 supplemental statement of the case at page 14. On August 16, 2010, the Veteran underwent VA examination. He complained of sleep problems, chronic depression, chronic suicidal ideation with no plan or intent, easy irritability, and hypervigilance. He described impaired concentration and having to use cues or reminders to remember appointments and medications. He reported becoming anxious in crowds, having a loss of pleasure and interest in activities, and feeling numb and detached. He stated that he maintained contact with his adult children and lived with his girlfriend for the past few years. He reported memory problems, but the examiner indicated that as the interview progressed, it became more apparent that the Veteran had concentration issues other than a classical memory problem. The Veteran stated that he retired in 2001 when he was placed on medical retirement. He denied homicidal ideation. Mental status examination findings included the following: alert, attentive, and fully oriented; psychomotor activity within normal limits; speech functions appropriate for rate, volume, prosody, and fluency with no evidence of paraphrasic errors; intellectual functioning within an average range; depressed affect; grossly intact memory functions with respect to immediate and remote recall of events and factual information; moderately impaired concentration, which the examiner believed would affect short-term memory to some degree if he does not use reminders or calendars to do things; goal-directed thought processes; thought content within normal limits; no evidence of perceptual disorder; appropriate dress and grooming; no abnormal behavior noted; and intact abstract thinking and judgment. He denied homicidal ideation. The Veteran maintained his own activities of daily living. The examiner administered a Trauma Symptom Inventory, which produced a valid profile and was very similar to the symptom pattern on clinical interview. The examiner indicated that moderate to severe symptoms occurred on a daily basis. The diagnosis included PTSD and depressive disorder NOS, which the examiner indicated was intertwined with the Veteran's PTSD. A GAF score of 50-51 was assigned. Prior to December 18, 2008 The Board has considered the objective evidence of record as well as the contentions and supporting lay evidence from the Veteran, his former representatives and attorney, and his ex-wife and siblings, and finds that the Veteran's PTSD is not so severe that a higher, 70 percent, disability rating is warranted prior to December 18, 2008. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence reflects that the Veteran's PTSD symptoms have more nearly approximated the criteria for the initial 50 percent rating currently assigned. In this case, the Board finds that for the time period prior to December 18, 2008 the Veteran's PTSD has been manifested objectively by dysphoric, dysthymic, depressed, irritable, somewhat constricted, or occasionally labile affect; somber and mildly dysthymic mood; poor judgment in March 2007; and difficulty establishing and maintaining effective relationships due to isolating himself. These findings more nearly approximate the criteria contemplated for a 50 percent disability rating. The Board finds that the preponderance of the competent and credible evidence of record does not demonstrate, or more nearly approximate, occupational and social impairment with deficiencies in most areas, the criteria for the next higher, 70 percent, rating prior to December 18, 2008. While the Veteran contends that his PTSD symptoms were more severely disabling than what is reflected in the assigned 50 percent rating, a review of his treatment records dated prior to December 18, 2008, in fact, shows that his symptoms have resulted in consistent disturbances in mood and affect, with some impairment in judgment. The Board finds that the next higher, 70 percent, rating has not been more nearly approximated prior to December 18, 2008 because the objective medical evidence does not show such symptoms as obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective work and social relationships that are characteristic of the 70 percent rating. Rather, with the exception of a one-week period in March 2007 when the Veteran endorsed suicidal ideation, reported having loaded guns, and was noted to have poor judgment; the evidence reflects some passive suicidal ideation without intent or plan and intact judgment and thinking. Similarly, while the Veteran's social isolation and difficulty communicating in relationships is well-documented throughout the record, the evidence shows that he had the ability to establish and maintain some effective relationships. For instance, the Veteran has reported having a new girlfriend and he had maintained contact with his adult children. In any event, the Board reiterates that when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Collectively, the aforementioned medical evidence reflects that, the Veteran's psychiatric symptoms have resulted in no more than occupational and social impairment with reduced reliability and productivity prior to December 18, 2008. This level of occupational and social impairment is consistent with the currently assigned 50 percent disability rating. The Board further finds that none of the GAF scores assigned at any point since the effective date of the award of service connection and prior to December 18, 2008 provides a basis for assigning a higher rating. Exclusive of the period of a TTR, GAF scores have ranged from 60 to 55 except for a one-week period in March 2007 when the Veteran endorsed suicidal ideation and reported having loaded guns and was admitted for treatment with a GAF score of 20, which reflects some danger of hurting self, and discharged with a GAF score of 71. GAF scores ranging from 51 to 60 are indicative of moderate symptoms such as flat affect or moderate difficulty in social functioning such as having few friends. The Board finds the GAF scores ranging from 55 to 60 are consistent with objective findings regarding constricted, blunt, or flat affect and with the subjective reports regarding social withdrawal and avoidance, sleep disturbance and nightmares, some poor appetite, and depressed mood. In any event, the Board emphasizes that a GAF score is not dispositive of the evaluation question; rather as indicated above, the symptoms shown provide the primary basis for an assigned rating. Here, as indicated above, the Veteran primarily exhibited symptoms typically associated with a 50 percent rating. In determining that the criteria for a 70 percent rating for the Veteran's psychiatric symptoms shown are not met, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the circumstances of this case, the Board finds that, since the November 2003 effective date of the award of service connection and prior to December 18, 2008, the Veteran's PTSD symptomatology has not met or more nearly approximated the criteria for a 70 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 70 percent, rating are not met, it follows that the criteria for an even higher rating (100 percent) likewise are not met. From December 18, 2008 through August 16, 2010 With resolution of reasonable doubt in the Veteran's favor, the Board concludes that the evidence of record establishes that an initial rating of 70 percent, but no higher, is warranted for PTSD from December 18, 2008 through August 16, 2010. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Here, the Veteran's PTSD has been manifested objectively by depressed mood; constricted to flat or blunted affect; moderately impaired concentration capable of affecting short-term memory; and inability to establish and maintain effective relationships due to extremely limited social functioning. In addition, the Board notes that since December 18, 2008, reported GAF scores have generally been in the 40s. GAF scores ranging from 41 to 50 are indicative of serious symptoms or serious impairment in social functioning such as having no friends. The Board finds that the assigned GAF scores in the 40s are consistent with the documentation reflecting that the Veteran has no friends and the August 2010 examiner's conclusion that the Veteran has "extremely limited social functioning." The Board finds that a higher, 100 percent, rating is not warranted, however, because despite having passive suicidal thoughts, the evidence does not reflect that the Veteran has been in persistent danger of hurting himself or others because he has stated that his religion would prevent him from committing suicide and he has consistently denied homicidal ideation. In addition, at no time has the objective medical evidence of record demonstrated gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; 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, his own occupation, or his own name. Therefore, a 100 percent rating is not warranted. Both Periods The Board has also considered whether the Veteran's psychiatric disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's psychiatric disability level and symptomatology, and provide for a higher, 100 percent, rating for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the currently assigned 50 percent schedular rating prior to December 18, 2008 and the awarded 70 percent schedular rating from December 18, 2008 are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted beyond the staged rating prior to and effective from December 18, 2008. In particular, the Board acknowledges that the Veteran was admitted for inpatient psychiatric treatment for one week in March 2007 after endorsing suicidal ideation and reporting that he had loaded guns. The Board also notes that the admitting GAF score of 20 is indicative of "some danger of hurting self." However, the Board finds that a staged rating is not warranted from that point in March 2007 because after his brief hospitalization, he reported doing much better, and his subsequent GAF scores of 60 in April 2007 and 55 in September 2007 were consistent with other GAF scores reflecting moderate symptomatology prior to December 18, 2008. In addition, the Board finds that for the time period from December 18, 2008, no further staging is warranted because the awarded 70 percent rating adequately compensates the Veteran for his objective manifestations of PTSD with associated depression and for his subjective symptoms such as nightmares, hypervigilance and increased startle, anxiety and depression, irritability, guilt, and avoidance behaviors. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 50 percent prior to December 18, 2008, and a higher initial rating than the 70 percent rating awarded from December 18, 2008, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Prior to December 18, 2008, entitlement to an initial rating in excess of 50 percent for PTSD is denied. From December 18, 2008 through August 16, 2010, entitlement to an initial disability rating of 70 percent for PTSD is allowed, subject to the regulations governing the award of monetary benefits. REMAND In July 2013, the Board received from the Veteran's attorney additional, new evidence that is pertinent to the Veteran's claim for a higher rating for PTSD. While the Veteran's attorney waived "any VCAA notice errors," a waiver of RO jurisdiction for this evidence was not included with the written statement. While the Board regrets additional delay in deciding the claim on appeal, the Board is required to return pertinent additional evidence that is not accompanied by a waiver of consideration of the agency of original jurisdiction. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issues. See 38 C.F.R. § 20.1304 (2012). The new evidence consists of a June 2013 vocational consultation report based on a telephonic interview with the Veteran after being referred by the Veteran's attorney. The Board finds the report is pertinent to the issue of an initial rating in excess of 70 percent for PTSD from August 17, 2010, because during the telephone interview, the Veteran stated that he was "unable to read instructions and understand them" and that he "cannot read and comprehend anything anymore" due to his PTSD with depression. Mental status or cognitive examination findings were not reported. Accordingly, because the June 2013 report may be suggestive of more severe impairment of PTSD affecting cognitive functioning and because the last VA examination was conducted three years ago in August 2010, the Board finds that the Veteran should be afforded an additional VA PTSD examination to assess the severity of his PTSD since August 17, 2010. Before arranging the necessary VA examination, the RO should obtain ongoing VA treatment records from the Biloxi VA Medical Center (VAMC) dated from August 2010 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain and associate with the claims file ongoing treatment records from the Biloxi VAMC dated from August 2010 to the present that pertain to PTSD with depression. 2. After the above development has been completed, schedule the Veteran for an examination to evaluate his PTSD with depression. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must indicate in the examination report that the claims file was reviewed in conjunction with the examination. All indicated studies, tests and evaluations deemed necessary by the examiner, including any psychological testing, should be performed. The results of such must be included in the examination report. In addition, the examiner is asked to specifically address and discuss any impairment in cognitive functioning or gross impairment in thought processes or communication found on examination. 3. After undertaking any other development deemed appropriate and ensuring that the requested actions are completed, the RO should readjudicate the claim of entitlement to an initial rating in excess of 70 percent for PTSD from August 17, 2010. If the benefit is not granted in full, the Veteran and his attorney should be furnished with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs