Citation Nr: 1328353	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  12-17 361	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent 
for posttraumatic stress disorder (PTSD) prior to September 
14, 2012.

2.  Entitlement to a disability rating in excess of 50 
percent for PTSD since September 14, 2012.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1957 to April 
1960 and from June 1966 to September 1973.  The Veteran also 
served in the Republic of Vietnam from November 1968 to 
November 1969.  His decorations include the Distinguished 
Flying Cross, Bronze Star Medal, and Air Medal with "V" 
Device.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2011 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Houston, Texas.  The RO assigned a 30 percent rating, 
effective October 28, 2010.  The Veteran appealed the rating 
decision.  Subsequently, in an October 2012 rating decision, 
the RO increased the disability rating for PTSD to 50 
percent, effective September 14, 2012.

In July 2013, a videoconference hearing was held at the 
local RO before the undersigned Veterans Law Judge (VLJ).  A 
transcript from the hearing is of record.  

Please 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

Since October 28, 2010, the Veteran's PTSD disorder has most 
nearly approximated deficiencies in most areas of work, 
school, family relationships, thinking, judgment, and mood; 
however, the preponderance of the evidence shows that the 
disability is not productive of total occupational and 
social impairment for the entire appeal period.

CONCLUSION OF LAW

Effective October 28, 2010, the criteria for a disability 
rating of 70 percent for PTSD, but no higher, have been met.  
38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. 
§§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veteran's claim for an increase in the disability rating 
for a PTSD disorder arises from a disagreement with the 
initial evaluation that was assigned following the grant of 
service connection.  Once service connection is granted, the 
claim is substantiated, additional notice is not required, 
and any defect in the notice is not prejudicial.  Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. 
Nicholson, 21 Vet. App. 112 (2007). 

VA also has a duty to assist the Veteran in the development 
of the claim.  This duty includes assisting the Veteran in 
the procurement of service treatment records, pertinent 
treatment records, and providing an examination when 
necessary.  38 C.F.R. § 5103A; 38 C.F.R. § 3.159.  

The VA obtained the Veteran's service treatment records and 
he was afforded VA examinations in April 2011 and August 
2012.  The Board finds that the VA examination reports are 
adequate for evaluation purposes because the examiners 
either reviewed the claims file or were otherwise informed 
of the relevant facts, including the history of the 
disability from information obtained from the Veteran, 
considered the contentions of the Veteran, and addressed the 
relevant rating criteria.  See Barr v. Nicholson, 21 Vet. 
App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 
124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 
304 (2008).  

The Veteran has been afforded a hearing before a VLJ in 
which he presented oral argument in support of his higher 
rating claim.  Bryant v. Shinseki, 23 Vet. App. 488 (2010), 
the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires 
that the VLJ who chairs a hearing fulfill two duties to 
comply with the above the regulation.  These duties consist 
of (1) the duty to fully explain the issues and (2) the duty 
to suggest the submission of evidence that may have been 
overlooked. 

Here, during the hearing, the VLJ did not note the bases of 
the prior determinations or the elements that were lacking 
to substantiate the higher rating claim.  The VLJ asked 
specific questions, however, directed at identifying whether 
the Veteran had symptoms meeting the schedular criteria for 
a higher rating.  In addition, the VLJ sought to identify 
any pertinent evidence not currently associated with the 
claims file that might have been overlooked or was 
outstanding that might substantiate the claim by asking 
about the locations and timing of the Veteran's treatment.  
Moreover, neither the Veteran nor his representative has 
asserted that VA failed to comply with 38 C.F.R. § 
3.103(c)(2) or identified any prejudice in the conduct of 
the Board hearing.  By contrast, the hearing focused on the 
elements necessary to substantiate the claim and the 
Veteran, through his testimony, demonstrated that he had 
actual knowledge of the elements necessary to substantiate 
his claim for benefits.  The Veteran discussed the nature 
and severity of his PTSD symptoms.  As such, the Board finds 
that, consistent with Bryant, the VLJ complied with the 
duties set forth in 38 C.F.R. § 3.103(c)(2) and that the 
Board can adjudicate the claim based on the current record. 

The Board finds that all relevant facts have been properly 
developed, and all reasonable efforts were made by VA to 
obtain evidence necessary to substantiate the Veteran's 
claim, and no further assistance to develop evidence is 
required.  Therefore, the Veteran will not be prejudiced as 
a result of the Board proceeding to the merits of his claim.

II.  Higher Rating Claim

Disability ratings are based on the average impairment of 
earning capacity established in the Schedule for Rating 
Disabilities.  Separate diagnostic codes identify the 
various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. Part 4 (2012).  Where there is a question as to which 
of two evaluations shall be applied, the higher evaluation 
will be assigned if the disability picture more nearly 
approximates the criteria required for that rating.  
Otherwise, the lower rating will be assigned.  See 38 C.F.R. 
§ 4.7.  Generally, the degrees of disability specified are 
considered adequate to compensate for loss of time from work 
proportionate to the severity of the disability.  38 C.F.R. 
§ 4.1.  

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the Veteran's condition.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 594 (1991).  Because the Veteran 
is challenging the initially assigned disability rating, it 
has been in continuous appellate status since the original 
assignment of service connection.  The evidence to be 
considered includes all evidence proffered in support of the 
original claim. Fenderson v. West, 12 Vet. App. 119 (1999).  
The Board may, however, grant different levels of 
compensation effective from different dates based on the 
evidence, throughout the period from the time the initial 
rating claim was filed in October 2010 until a final 
decision is made here.  See Hart v. Mansfield, 121 Vet. App. 
505 (2007).  Here, the Veteran seeks an increased rating for 
his service-connected PTSD disorder.  As noted, the October 
2012 rating decision granted a staged rating for the 
disability.  Id.

The assignment of a particular diagnostic code is 
"completely dependent on the facts of a particular case."  
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One 
diagnostic code may be more appropriate than another based 
on such factors as an individual's relevant medical history, 
the current diagnosis and demonstrated symptomatology.  Any 
change in a diagnostic code by VA must be specifically 
explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

The General Rating Formula for Mental Disorders, including 
Diagnostic Code 9434, at 38 C.F.R. § 4.130 provides the 
following ratings for psychiatric disabilities.  A 30 
percent evaluation is provided for 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 behaviour, 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).  38 C.F.R. § 
4.130.  

A 50 percent rating is warranted if it is productive of 
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.  

A 70 percent rating contemplates 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); inability to establish and maintain effective 
relationships.  Id.  

A maximum 100 percent evaluation is warranted for a total 
occupational and social impairment, due to such symptoms as: 
gross impairment in thought processes or communications; 
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 or close relatives, own occupation, or own name.  Id.  

The use of the term 'such as' in the general rating formula 
for mental disorders in 38 C.F.R. § 4.130 demonstrates that 
the symptoms after that phrase are not intended to 
constitute an exhaustive list, but rather are to serve as 
examples of the type and degree of symptoms, or their 
effects, that would justify a particular rating.  See 
Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is 
not required to find the presence of all, most, or even 
some, of the enumerated symptoms recited for particular 
ratings.  Id.  The use of the phrase 'such symptoms as,' 
followed by a list of examples, provides guidance as to the 
severity of symptoms contemplated for each rating, in 
addition to permitting consideration of other symptoms, 
particular to each Veteran and disorder, and the effect of 
those symptoms on the claimant's social and work situation.  
Id.  When determining the appropriate disability evaluation 
to assign, however, the Board's "primary consideration" is 
the Veteran's symptoms.  Vazquez-Claudio v. Shinseki, 713 
F.3d 112, 118 (Fed. Cir. 2013).

In evaluating psychiatric disorders, the VA has adopted and 
employs the nomenclature in the rating schedule based upon 
the Diagnostic and Statistical Manual of Mental Disorders, 
Fourth Edition, of the American Psychiatric Association 
(DSM-IV).  See 38 C.F.R. § 4.130.  As such, the diagnosis of 
a mental disorder should conform to DSM-IV.  See 38 C.F.R. 
§ 4,125(a).  Diagnoses many times will include an Axis V 
diagnosis, or a Global Assessment of Functioning (GAF) 
score.  The GAF is a scale reflecting the psychological, 
social, and occupational functioning on a hypothetical 
continuum of mental health illness.  See Carpenter v. Brown, 
8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 
Vet. App. 266, 267 (1996), citing Diagnostic and Statistical 
Manual of Mental Disorders (4th ed.1994). 

Scores ranging from 51 to 60 reflect more moderate symptoms 
(e.g., flat affect and circumstantial speech, occasional 
panic attacks) or moderate difficulty in social, 
occupational, or school functioning (e.g., few friends, 
conflicts with peers or co- workers).

Scores ranging from 61 to 70 reflect mild symptoms (e.g., 
depressed mood and mile insomnia) or difficulty in social, 
occupational, or school functioning (e.g., occasional 
truancy, or theft within the household).

Further, in making all determinations, the Board must fully 
consider the lay assertions of record.  A layperson is 
competent to report on the onset and recurrence of symptoms.  
See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran 
is competent to report on that of which he or she has 
personal knowledge).  Lay evidence can also be competent and 
sufficient evidence of a diagnosis or to establish etiology 
if (1) the layperson is competent to identify the medical 
condition, (2) the layperson is reporting a contemporaneous 
medical diagnosis, or (3) lay testimony describing symptoms 
at the time supports a later diagnosis by a medical 
professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 
(Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 
1376-77 (Fed. Cir. 2007).  When considering whether lay 
evidence is competent the Board must determine, on a case by 
case basis, whether the Veteran's particular disability is 
the type of disability for which lay evidence may be 
competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see 
also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility 
and weight given to evidence.  Madden v. Gober, 125 F.3d 
1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 
(1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  
Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 
2001), the United States Court of Appeals for the Federal 
Circuit (Federal Circuit), citing its decision in Madden, 
recognized that that Board had inherent fact-finding 
ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 
2002).  Moreover, the United States Court of Appeals for 
Veterans Claims (Court) has declared that in adjudicating a 
claim, the Board has the responsibility to weigh and assess 
the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 
(2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence 
is satisfactory, the Board may also properly consider 
internal inconsistency of the statements, facial 
plausibility, consistency with other evidence submitted on 
behalf of the Veteran, and the Veteran's demeanor when 
testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. 
App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a 
medical opinion, the Board must consider three factors.  See 
Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The 
initial inquiry in determining probative value is to assess 
whether a medical expert was fully informed of the pertinent 
factual premises (i.e., medical history) of the case.  A 
review of the claims file is not required, since a medical 
professional can also become aware of the relevant medical 
history by having treated a Veteran for a long period of 
time or through a factually accurate medical history 
reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the 
medical expert provided a fully articulated opinion.  See 
Id.  A medical opinion that is equivocal in nature or 
expressed in speculative language does not provide the 
degree of certainty required for medical nexus evidence.  
See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative 
value of an opinion involves consideration of whether the 
opinion is supported by a reasoned analysis.  The most 
probative value of a medical opinion comes from its 
reasoning.  Therefore, a medical opinion containing only 
data and conclusions is not entitled to any weight.  In 
fact, a review of the claims file does not substitute for a 
lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. 
App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 
124 (2007) ("[A] medical opinion ... must support its 
conclusion with an analysis that the Board can consider and 
weigh against contrary opinions.").  

Based on the evidence of record, the Board finds that the 
Veteran's disability picture most closely approximates a 70 
percent disability evaluation for the entire period on 
appeal.

The Veteran had a VA examination in April 2011.  The 
examiner noted that during service he was exposed to intense 
high mortality situations as a helicopter pilot during his 
service in Vietnam.  The Veteran indicated that during his 
service, he experienced intense fear, helplessness and 
horror.  The Veteran noted that his wife was afraid to sleep 
with him because of his "physical acting out" of his dreams 
while sleeping.  It was noted that the Veteran has sustained 
a limited social life, has preferred to keep to himself and 
works in his yard to avoid family members due to his PTSD.  
He has been married for many years and his daughters live 
next door.  He had not attempted suicide and had no history 
of violence.  

The examiner noted that the Veteran suffered from a sleep 
impairment that caused him to be fatigued.  It was noted 
that the Veteran had turned to alcohol in the past to deal 
with his PTSD symptoms.  The Veteran indicated that he 
checked his surroundings, windows, doors and locks and that 
he suffered from moderate panic attacks three to four times 
a year.  The Veteran indicated that it is very hard for him 
to tolerate public areas.

Upon examination, the examiner found that the Veteran 
suffered from recurrent and intrusive distressing 
recollections and intense psychological distress when 
exposed to internal and external cues that symbolize or 
resemble aspects of the traumatic events experienced in 
service.  The Veteran was diagnosed with chronic PTSD and 
was given a GAF score of 60.  The examiner noted that the 
Veteran was hypervigilant when not appropriate to be, that 
he was inappropriately irritable and had angry reactions 
when not necessary.  The Veteran had ruminations of war, was 
avoidant and preferred to keep to himself.  He worked in a 
setting that allowed him limited social interaction and was 
generally dysphoric, due to his PTSD and became emotional 
when observing patriotic themes.  

The Veteran was afforded a VA examination in August 2012.  
He reported that he had a good marriage and was friends with 
other Veterans.  The Veteran, however, did not have an 
extensive social life and it was noted that he had 
difficulty establishing and maintaining effective work and 
social relationships.  Upon examination, the report 
reflected that the Veteran often suffered from feelings as 
if the events experienced in service were recurring.  The 
examiner noted that he had markedly diminished interest in 
significant activities and suffered from a feeling of 
detachment or estrangement from others.  The Veteran had 
difficulty concentrating and was irritable and had outbursts 
of anger.  In addition, he suffered from anxiety and mild 
memory loss.

The examiner stated that the Veteran's symptoms had worsened 
in severity and frequency since his brother had developed 
symptoms due to Agent Orange, which in turn triggered many 
of the Veteran's PTSD symptoms.  The examiner noted that the 
Veteran continued to exhibit a degree of social impairment 
with few activities out of the home and he only felt 
comfortable talking with other veterans.  The Veteran's GAF 
score was 65.

At the July 2013 videoconference hearing, the Veteran stated 
that he saw a lot of atrocities during the Vietnam War.  He 
indicated that he suffered from anxiety attacks when he was 
around a lot of people or stuck in traffic.  He noted that 
he suffered from flashbacks and was startled when the phone 
rang because he believed someone might be in trouble.  He 
indicated that he suffers from survivor's guilt and that 
there has been no closure from the experiences and thoughts 
of his military service.  He stated that he can get 
irritated very easily.  He reported that he had trust issues 
and mainly associated with the Veteran's from his unit.  He 
stated that he had difficulty falling and staying asleep.  
He noted that he had problems with his short term memory 
loss and sometimes forgot to get fully dressed.  He stated 
that he neglects his personal hygiene, sometimes not 
changing his clothes for days.  He also noted that suicidal 
thoughts have passed through his mind.

VA progress notes from the Veteran's PTSD group treatment 
sessions have been associated with the claims file.  The 
Veteran reports to be suffering from symptoms of PTSD, to 
include nightmares, hypervigilance, sleeping problems, 
anger, depression and anxiety.  

Resolving all doubt in favor of the Veteran, the Board finds 
that the evidence shows that his PTSD more nearly 
approximates the criteria for a 70 percent rating for the 
entire period on appeal.  The evidence reflects that his 
PTSD was manifested by disturbances in his mood, panic 
attacks, decreased ability to establish and maintain social 
relationships, impaired impulse control and neglect of 
personal appearance and hygiene.  While the evidence has 
shown that the Veteran's PTSD has resulted in occupational 
and social impairment the evidence does not reflect that 
such impairment is total.  The evidence of record does not 
demonstrate that he has symptoms such as gross impairment in 
thought processes or communication; persistent delusions; 
grossly inappropriate behavior; persistent danger of hurting 
self or others; intermittent inability to perform activities 
of daily living; or disorientation to time or place; memory 
loss for names of close relatives, own occupation or own 
name. 38 C.F.R. § 4.130, Diagnostic Code 9434.  Thus, the 
criteria for a 100 percent disability rating have not been 
met. 

In exceptional cases an extraschedular rating may be 
provided.  38 C.F.R. § 3.321.  The Court has set out a 
three-part test, based on the language of 38 C.F.R. 
§ 3.321(b)(1), for determining whether a Veteran is entitled 
to an extraschedular rating: (1) the established schedular 
criteria must be inadequate to describe the severity and 
symptoms of the claimant's disability; (2) the case must 
present other indicia of an exceptional or unusual 
disability picture, such as marked interference with 
employment or frequent periods of hospitalization; and (3) 
the award of an extraschedular disability rating must be in 
the interest of justice.  Thun v. Peake, 22 Vet. App. 111 
(2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 
2009).  

The Board finds that the rating criteria adequately 
contemplate the manifestations of the Veteran's PTSD 
disorder.  The Board has carefully compared the level of 
severity and symptomatology of the Veteran's PTSD, to 
include the significant impact on his mood and social 
related functioning, with the criteria found in the rating 
schedule and finds that the manifestations are contemplated 
in the applicable rating criteria.  Therefore, the rating 
criteria are adequate to evaluate the Veteran's PTSD 
disorder and referral for consideration of extraschedular 
rating is not warranted.

The Court has held that entitlement to a total disability 
based on individual unemployability (TDIU) is an element of 
all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. 
App. 447 (2009).  Entitlement to a TDIU is raised when a 
Veteran: (1) submits evidence of a medical disability; (2) 
makes a claim for the highest rating possible; and (3) 
submits evidence of unemployability.  At the Veteran's July 
2013 videoconference hearing, he stated that he was not 
seeking entitlement to TDIU.  In addition, the evidence does 
not suggest that his PTSD condition renders him 
unemployable.  As such, the question of entitlement to a 
TDIU is not raised.


ORDER

Effective October 28, 2010, a rating of 70 percent for PTSD, 
is granted, subject to statutory and regulatory provisions 
governing the payment of monetary benefits.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs