Citation Nr: 1328355	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  07-32 007	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel






INTRODUCTION

The Veteran had active military service in the United States 
Army from June 1966 to June 1969.  He was awarded the Purple 
Heart Medal and Combat Infantryman's Badge. 

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a February 2007 rating decision by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Columbia, South Carolina.  By that rating action, the RO 
granted service connection for PTSD; an initial 30 percent 
disability rating was assigned, effective September 11, 
2006, the date VA received the Veteran's initial claim for 
compensation for the above-cited disability.  The Veteran 
appealed the RO's February 2007 rating action to the Board.

When this case was previously before the Board in August 
2011, it was remanded for additional evidentiary 
development; it has since been returned to the Board for 
further appellate action.

The Board notes that there is an electronic "Virtual VA" 
file in addition to the paper claims file.  The electronic 
file was reviewed to ensure thorough analysis of the 
evidence of record.


FINDING OF FACT

The impairment from the Veteran's PTSD more closely 
approximates occasional decrease in work efficiency and 
intermittent periods of inability to perform occupational 
tasks than reduced reliability and productivity.
 





CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent 
for PTSD are not met or approximated.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 
(2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking an increased initial rating for his 
PTSD.  The Board will initially discuss certain preliminary 
matters and will then address the pertinent law and 
regulations and their application to the facts and evidence.

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2012), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2012), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain 
on behalf of the claimant.  Although the regulation 
previously required VA to request that the claimant provide 
any evidence in the claimant's possession that pertains to 
the claim, the regulation has been amended to eliminate that 
requirement for claims pending before VA on or after May 30, 
2008.

The Board also notes the Court has held the plain language 
of 38 U.S.C.A. § 5103(a) requires notice to a claimant 
pursuant to the VCAA be provided "at the time" or 
"immediately after" VA receives a complete or substantially 
complete application for VA-administered benefits.  
Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

In the case at hand, the record reflects the originating 
agency provided the Veteran with all required notice by 
letter mailed in September 2006, prior to the initial 
adjudication of the claim. 

The record also reflects that service treatment records 
(STRs) and pertinent post-service medical records have been 
obtained and that the Veteran has been afforded appropriate 
VA examinations.

Neither the Veteran nor his representative has identified 
any other evidence that could be obtained to substantiate 
the claim.  The Board also is unaware of any such evidence.  
Therefore, the Board also is satisfied that the originating 
agency has complied with the duty to assist requirements of 
the VCAA and the pertinent implementing regulation.

Accordingly, the Board will address the merits of the claim.

Legal Criteria

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 38 
C.F.R. Part 4 (2012).  The percentage ratings contained in 
the Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 
3.321(a), 4.1 (2012).

PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  
The rating criteria are as follows.

A 30 percent rating is warranted 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 behavior, self-care, and conversation normal), due 
to such symptoms as: depressed mood, anxiety, 
suspiciousness, panic attacks (weekly or less often), 
chronic sleep impairment, and mild memory loss (such as 
forgetting names, directions, recent events).

A 50 percent rating is warranted for 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 effective work and social relationships.

A 70 percent rating is warranted for 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.

A 100 percent rating is warranted for 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.

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.  38 C.F.R. § 4.7.

It is not expected, especially with the more fully described 
grades of disabilities, that all cases will show all the 
findings specified; findings sufficiently characteristic to 
identify the disease and the disability therefrom are 
sufficient; and above all, a coordination of rating with 
impairment of function will be expected in all cases.  38 
C.F.R. § 4.21 (2011).

Additionally, when there is an approximate balance of 
positive and negative evidence regarding any issue material 
to the determination of a matter, the Secretary shall give 
the benefit of the doubt to the claimant.  38 U.S.C.A. § 
5107(b) (West 2002); 38 C.F.R. § 4.3 (2011).

Analysis

Service connection for PTSD was granted in the February 2007 
rating decision that assigned a 30 percent schedular rating, 
effective September 11, 2006.  

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board 
has reviewed all evidence of record pertaining to the 
history of the Veteran's service-connected PTSD.  The Board 
has found nothing in the historical record which would lead 
to the conclusion that the current evidence of record is not 
adequate for rating purposes.  

In response to his claim for service connection for PTSD, 
the Veteran was afforded a VA examination in October 2006.  
The Veteran reported that his PTSD symptoms included anxiety 
and depression symptoms which occurred from his memories 
from Vietnam, sleep disturbances, intrusive memories, 
flashbacks, bad dreams, hypervigilance and hyper alertness, 
and some rituals to include checking his house, windows, and 
doors.  He also reported volunteering with retired Marines.  
Mental status examination showed normal speech in rhythm and 
rate, excellent memory, thought content was clear and 
logical, he did not exhibit psychotic symptoms, he denied 
suicidal or homicidal ideations.  The VA examiner diagnosed 
PTSD with a Global Assessment of Functioning (GAF) score of 
60 to 65.  The examiner also stated that the despite his 
PTSD symptoms, the Veteran had lived a very productive life.

The record is replete with VA treatment records in which the 
Veteran reported dealing with his PTSD on his own.

The record also contains Vet Center treatment records in 
which mental status evaluations showed that the Veteran was 
neat, friendly and cooperative, had appropriate speech, was 
oriented, had impaired memory, and had a flat, blunted 
affect.  He did not report delusions, hallucinations, 
suicidal thoughts, or homicidal thoughts.  He reported sleep 
disturbances, nightmares, and isolating regularly.  

In response to the Board's August 2011 remand, the Veteran 
was afforded a VA examination in September 2011 in which he 
reported PTSD symptoms to include recurrent and distressing 
recollections and dreams, avoidance, feelings of detachment 
and estrangement, sleep disturbances, irritability or 
outbursts of anger, hypervigilance, exaggerated startle 
response, and suspiciousness.  He also reported that he 
remained married, had good contact with his children, golfed 
about twice a week with friends, maintained friendships, 
traveled, and volunteered.  Mental status examination showed 
impeccable hygiene, full ranged affect, mildly intense and 
serious mood.  The Veteran stated that he felt capable of 
employment, and the examiner opined that he maintained 
employability.  The examiner diagnosed PTSD, chronic, 
unremitting, relatively mild, and assigned a GAF score of 
65, representing primarily mild impact on social 
functioning; generally functioning pretty well, coping with 
symptoms and had some meaningful interpersonal 
relationships.  The examiner stated that the best summary 
for the Veteran's level of impairment was occupational and 
social impairment due to mild or transient symptoms which 
decrease work efficiency and ability to perform occupational 
tasks only during period of significant stress.

Applying the aforementioned PTSD rating criteria to the 
medical and lay evidence outlined above, the Board concludes 
that the Veteran does not meet the criteria for a rating in 
excess of 30 percent. 

In determining that the Veteran's PTSD warrants the 
aforementioned disability rating, the Board has considered 
the GAF scores assigned for the Veteran.  GAF scores are 
based on a scale reflecting the "psychological, social, and 
occupational functioning on a hypothetical continuum of 
mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 
240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 
267 (1996), citing the American Psychiatric Association's 
DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, 
Fourth Edition (DSM-IV), p. 32.

A GAF score of 51-60 is appropriate where there are, 
"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)."

A score of 61-70 is indicated where there are, "some 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." 

In this case the GAF scores assigned for PTSD are consistent 
with the Veteran's moderate symptoms as detailed by the 
examiners and treating providers.  However, the GAF scores 
do not correlate to any specific rating.  The Board has 
found the examination findings and the actual assessments of 
the Veteran's occupational and social functioning to be more 
probative than the GAF scores.

The Board notes that the Court has held that the symptoms 
enumerated under the schedule for rating mental disorders 
are not intended to constitute an exhaustive list, but 
rather are to serve as examples of the type and degree of 
the symptoms, or their effects, that would justify a 
particular disability rating.  See Mauerhan v. Principi, 16 
Vet. App. 436 (2002). 

The evidence of record shows that the Veteran's PTSD most 
closely caused occupational and social impairment with 
occasional decrease in work efficiency and intermittent 
periods of inability to perform occupational tasks, which is 
within the criteria for the 30 percent rating.  A schedular 
rating of 50 percent rating is awarded for reduced 
reliability and productivity, but the evidence does not show 
the Veteran's PTSD impairment more nearly approximates such 
impairment. 

To this point, specific symptoms associated with the 50 
percent rating include 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 effective work and social relationships.  
Review of the evidence of record shows that the Veteran's 
PTSD caused some indication of blunted affect, impaired 
memory, and disturbances of mood, but the other symptoms 
were absent.  The record showed, however, repeated reports 
of good marital and social relationships.  In the words of 
the August 2011 VA examination report, the best summary for 
the Veteran's level of impairment was occupational and 
social impairment due to mild or transient symptoms which 
decrease work efficiency and ability to perform occupational 
tasks only during period of significant stress.  This 
description does not approach the "reduced reliability and 
productivity," required for a 50 percent rating.  

For the reasons above the Board finds the criteria for a 
rating in excess of 30 percent are not met. 

Consideration has been given to assigning a staged rating; 
however, at no time during the period in question has the 
disability warranted more than the assigned ratings.  See 
Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. 
Mansfield, 21 Vet. App. 505 (2007). 

VA must also consider all favorable lay evidence of record. 
38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  
Accordingly, in arriving at the determination above the 
Board has considered the lay evidence offered by the Veteran 
and his representative in the form of correspondence to VA 
in which it has generally been asserted that the Veteran is 
entitled to a higher disability rating for his PTSD due to 
his reported symptoms.  Although the Veteran is competent to 
report his own overall symptomology, and in affording those 
statements full credibility, they do not show that his 
impairment more closely approximates the schedular criteria 
for the next higher evaluation.

The Board has also considered whether this case should be 
referred to the Director of the VA Compensation and Pension 
Service for extra-schedular consideration under 38 C.F.R. § 
3.321(b) (1).  The Court has held that the threshold factor 
for extra-schedular consideration is a finding on part of 
the RO or the Board that the evidence presents such an 
exceptional disability picture that the available schedular 
evaluations for the service-connected disability at issue 
are inadequate.  Therefore, initially, there must be a 
comparison between the level of severity and the 
symptomatology of the claimant's disability with the 
established criteria provided in the rating schedule for the 
disability.  If the criteria reasonably describe the 
claimant's disability level and symptomatology, then the 
disability picture is contemplated by the rating schedule, 
the assigned evaluation is therefore adequate, and no 
referral for extra-schedular consideration is required.  
Thun v. Peake, 22 Vet. App. 111 (2008). 

In the case at hand, the record reflects that the 
manifestations of the disability are not in excess of those 
contemplated by the schedular criteria.  In sum, there is no 
indication that the average industrial impairment from the 
disability would be in excess of that contemplated by the 
assigned rating.  Accordingly, the Board has determined that 
referral of this case for extra-schedular consideration is 
not in order.

Finally, according to VA General Counsel, the question of 
entitlement to a total rating based on individual 
unemployability (TDIU) may be considered as a component of 
an appealed increased rating claim if the TDIU claim is 
based solely upon the disability or disabilities which are 
the subject of the increased rating claim.  If the veteran 
asserts entitlement to a TDIU based in whole or in part on 
other service-connected disabilities which are not the 
subject of the appealed RO decision, the Board lacks 
jurisdiction over the TDIU claim except where appellate 
jurisdiction is assumed in order to grant a benefit, 
pursuant to 38 C.F.R. 19.13(a).  See VAOGCPREC 6-96.  VA 
General Counsel opinions are binding on the Board.  See 38 
U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2007).  
In the Board's opinion, none of the Veteran's statements and 
none of the other evidence of record raise the issue of 
entitlement to a TDIU due to the service-connected 
psychiatric disability.  Therefore, a TDIU claim is not 
before the Board.

In reaching its decision, the Board has considered the 
benefit-of-the-doubt rule; but has determined that it does 
not apply in this case because the preponderance of the 
evidence is against the claim.


ORDER

Entitlement to an initial disability rating in excess of 30 
percent for PTSD is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs