Citation Nr: 1328801 Decision Date: 09/09/13 Archive Date: 09/24/13 Citation Nr: 1328801 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 04-35 419 ) DATE SEP 09 2013 ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board hearing in a November 2004 letter. Thereafter, in August 2008, he notified the RO that he did not want any type of Board hearing and requested that his case be forwarded to the Board. The Board considers the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2011). The Veteran appealed the Board's November 2009 decision denying the Veteran's claim to a disability rating in excess of 50 percent and denying the Veteran's request to reopen his service connection claim for a left knee disability to the United States Court of Appeals for Veterans Claims (Court). In September 2010, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion to Vacate Decision and to Remand in Part (Joint Motion). In a September 2010 Order, the Court granted the motion, vacated the portion of the Board's November 2009 decision that denied a disability rating in excess of 50 percent for PTSD and the Veteran's request to reopen the service connection claim for a left knee disability, and remanded the matter to the Board for action consistent with the Joint Motion. The Board remanded these matters in March 2011 and October 2012 for further development. The RO continued the denial of each claim as reflected in the February 2013 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. Thereafter, the Board denied the claims on appeal in an April 2013 decision. ORDER TO VACATE The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). The Veteran's attorney submitted VA Form 21-22a, Appointment of Individual as Claimant's Representative, to the Louisville, Kentucky RO in December 2012. The claims file contains a fax from the Veteran's attorney to the FOIA office at the Louisville, Kentucky Regional Office in April 2013 requesting a status update on their prior request for the Veteran's claims file. Thereafter, in April 2013, the Board denied the Veteran's claims on appeal. In May 2013, the Veteran's attorney requested that the Board reconsider the April 2013 decision as they had requested a copy of the Veteran's claims file when they submitted the VA Form 21-22a, but they have not received a copy of the claims file. The claims file indicates that the Veteran's attorney had not received a copy of claims file prior to the Board decision in April 2013. Accordingly, the April 30, 2013 Board decision addressing the issues of entitlement to service connection for a left knee disability and entitlement to a disability rating in excess of 50 percent for PTSD is vacated. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 1314276 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 04-35 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board hearing in a November 2004 letter. Thereafter, in August 2008, he notified the RO that he did not want any type of Board hearing and requested that his case be forwarded to the Board. The Board considers the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2011). The Veteran appealed the Board's November 2009 decision denying the Veteran's claim to a disability rating in excess of 50 percent and denying the Veteran's request to reopen his service connection claim for a left knee disability to the United States Court of Appeals for Veterans Claims (Court). In September 2010, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion to Vacate Decision and to Remand in Part (Joint Motion). In a September 2010 Order, the Court granted the motion, vacated the portion of the Board's November 2009 decision that denied a disability rating in excess of 50 percent for PTSD and the Veteran's request to reopen the service connection claim for a left knee disability, and remanded the matter to the Board for action consistent with the Joint Motion. The Board remanded these matters in March 2011 and October 2012 for further development. The RO continued the denial of each claim as reflected in the February 2013 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not have a current diagnosis of a left knee disability that is related to active military service. 2. The Veteran's service-connected PTSD is manifested by moderate difficulty in establishing and maintaining effective work and social relationships with sleep impairment, flashbacks, avoidant behavior, irritability, anger, impaired impulse control, hypervigilence; anxiety attacks that occur approximately three to four times a week and a GAF score that ranged from 45 to 65. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for a disability rating in excess of 50 percent for service-connected PTSD have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that VA letters dated in April 2003 and June 2008 satisfied the duty to notify provisions. In this regard, the April 2003 letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a left knee disability. The June 2008 letter also notified the Veteran of how VA determines a disability rating and an effective date if his claim is granted. The letters also informed the Veteran of his and VA's respective duties for obtaining evidence. The letters requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. For increased-compensation claims, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 percent and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). The Board concludes that letters dated in April 2003 and June 2008 satisfied the duty to notify provisions. The letters notified the Veteran that he may submit evidence showing that his service-connected PTSD has increased in severity. The RO informed the Veteran of the types of medical or lay evidence that he may submit. Specifically, the Veteran was informed in the June 2008 letter that evidence that may show an increase in severity might be a statement from his doctor containing physical and clinical findings, results from laboratory tests or x-rays and the dates of examinations and tests. He was also informed that he could provide lay statements from individuals who are able to describe from their own knowledge and personal observations in what manner his disability has become worse. The letter notified the Veteran that he could provide statements from his employer as to job performance, lost time or other information regarding how his condition affects his ability to work. The Veteran was informed of his and VA's respective duties for obtaining evidence. The June 2008 letter also notified the Veteran of how VA determines disability ratings and effective dates. The April 2003 letter was sent to the Veteran prior to the January 2004 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini, 18 Vet. App. at 120. The June 2008 VCAA notice was sent after the initial adjudication of the Veteran's claims. Nevertheless, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of the supplemental statement of the case issued in June 2008 after the notice was provided and the Veteran waived the 60-day time limit to provide additional evidence. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Accordingly, the Board finds that VCAA letters dated in an April 2003 and June 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, Vet Center treatment records, private treatment records, lay statements from the Veteran, his family, and two former inmates, VA examinations dated in November 2003, July 2005, September 2005 June 2011, November 2012 and December 2012. The November 2003, July 2005 and December 2012 VA examination reports reflect that the examiners reviewed the claims file, obtained an oral history from the Veteran and conducted a mental health evaluation of the Veteran. The examiners documented in detail the Veteran's reported symptoms, the results of the clinical examinations and the effect his symptoms of PTSD have on his occupational and social functioning. Accordingly, the Board has determined that the examinations are adequate for rating purposes. With respect to the Veteran's claim for a left knee disability, VA examinations conducted in July 2005 and in September 2005, show that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history and provided a physical examination of the Veteran. Following the above, the July 2005 examiner determined that his x-rays were normal and there is insufficient clinical evidence at present to warrant a diagnosis of any acute or chronic disorder. As there was no evidence of a current disability of the left knee, the September 2005 examiner could not provide an opinion on the likelihood of any left knee disability being related to military service. The Veteran was provided with two more VA examinations in June 2011 and November 2012. The VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiners discussed the relevant evidence of record and documented the results of the clinical evaluation. Following the above, the examiners provided a diagnosis and a nexus opinion with supporting rationale, which appears to be based on the evidence of record. As such, the Board concludes that the examinations are adequate for adjudication purposes. These issues were previously remanded in March 2011 to obtain outstanding VA treatment record, to obtain treatment records from the Dallas Veteran Center for PTSD group counseling from September 2002 to May 2003 and to provide the Veteran with a VA examination for his left knee if the evidence indicates that he has a current diagnosis of a left knee disability. The evidence shows that recent outstanding VA treatment records and the treatment records from the PTSD group counseling sessions at the Dallas Veteran Center from September 2002 to May 2003 are associated with the claims file. The Veteran was provided with a VA examination of his left knee in June 2011. The Board remanded the claims again in October 2012 to provide the Veteran with another VA examination and opinion with respect to the left knee and to obtain a VA examination that evaluated the current severity of his PTSD symptoms. The claims file contains a November 2012 VA examination that addresses the questions raised in the October 2012 Board remand with respect to his left knee and the examiner supported her opinion with an explanation. The record also reflects that the Veteran was provided with a VA examination that documented the nature and severity of his PTSD symptoms. Accordingly, the Board finds that there has been substantial compliance with the March 2011 and October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Other Procedural Issues The RO originally denied the claim of entitlement to service connection for a left knee disability in January 1993. Notification of this initial denial, including information concerning his procedural and appellate rights in the event he wanted to contest that initial decision were sent to an address other than what was of record at that time. Specifically, the Veteran submitted a different address in his formal application of benefits dated in May 1992 than what was used in the January 1993 rating decision. Furthermore, there is no indication in the claims file between the May 1992 claim for benefits and the January 1993 rating decision that the Veteran's address had changed. As the initial denial of service connection for a left knee disability in January 1993 was sent to an address other than what was of record at the time of that decision, it cannot be presumed that the Veteran received notification of the rating decision and his appellate rights. Although the Veteran has not specifically alleged that he did not receive the January 1993 rating decision, the Veteran's statements in his December 2002 claim supports the indication that the Veteran did not receive a copy of the January 1993 decision. In this regard, the Veteran stated in December 2002 that he was in receipt of a 10 percent disability rating, but he was not sure what the consideration was for granting the 10 percent benefit as he reported the following medical conditions to VA: problems with his knees, hearing loss and PTSD. Thus, it appears that the Veteran did not receive a copy of the January 1993 rating decision. The U.S. Court of Veterans Appeals (Court) has held that the consequence of a failure to notify in accordance with the regulation renders the RO's determination non-final. Best v. Brown, 10 Vet. App. at 325 (failure to notify claimant that he was denied service connection for a particular condition constituted a procedural error under 38 C.F.R. §§ 3.103(e) and 3.104(a), rendered the RO's decision not final, and deprived the Veterans Court of jurisdiction over the claim). Thus, the Board finds that the January 1993 rating decision did not become final and binding on the Veteran as the overall evidence of record indicates that the Veteran was not notified of that decision. See 38 U.S.C.A. § 5104(a), (b);38 C.F.R. § 3.104(a); See AG v. Peake, 536 F.3d 1306, 1308 (Fed. Cir. 2008) (holding as a result of RO failure to notify the appellant of his right to appeal, the underlying RO decision "never became final"); Cook v. Principi, 318 F.3d 1332, 1340 (Fed.Cir.2002) (en banc) (stating that a VA decision may be rendered nonfinal when "the time for appealing either an RO or a Board decision did not run where the [Secretary] failed to provide the veteran with information or material critical to the appellate process."). This, in turn, means that the Veteran does not need to submit new and material evidence with respect to his service connection claim for a left knee disability. Before turning to the merits of the Veteran's service connection claim for a left knee disability, the Board must determine if it would be prejudicial to the Veteran to address the merits of the claim, given that the RO's decision in January 2004 determined that the claim could not be reopened and did not consider the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). While the RO initially did not reopen the claim, the RO explained the denial of the Veteran's claim based on the merits and provided an analysis of the evidence of record in the August 2012 supplemental statement of the case. Accordingly, the Board finds that it would not be prejudicial to the Veteran for the Board to address the merits of his service connection claim for a left knee disability. III. Merits of the Claim for Service Connection The Veteran claims that his current left knee disability is related to his active military service. Specifically, he contends that his left knee disability is related to a left knee strain that occurred during service and/or parachuting during service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In assessing the Veteran's service connection claim for a left knee disability, the evidence of record must show that the Veteran has a current diagnosis of the claimed disability. The Board observes that the post-service treatment records do not show a current diagnosis of a left knee disability. A VA examination report dated in July 2005 reveals that the examiner noted that the Veteran had a history of a left knee strain in service. She determined that the x-ray was normal and there was insufficient clinical evidence at present to warrant a diagnosis of any acute or chronic disorder or residuals thereof. The Veteran was provided with another examination in September 2005 and the VA examiner noted that the July 2005 x-ray revealed a small calcification of bone distally adjacent to the medial collateral of the left femur. The September 2005 VA examiner did not interpret these results or indicate whether it suggests that the Veteran has a current left knee disorder. The Veteran underwent a third VA examination of his left knee in June 2011 and the examiner determined that the Veteran had calcifications around the medical femoral condyle with otherwise normal left knee joint. The VA examiner in December 2012 explained that the radiographic findings of calcifications seen in the radiographic findings in June 2011 and on current imaging in November 2012 are findings consistent with a prior medial collateral ligament (MCL) injury. The x-ray findings of calcifications in the area of the MCL may cause focal pain in the area, but do not, otherwise, result in any specific clinical findings and are of no clinical significance. The November 2012 VA examiner provided a diagnosis of left knee arthralgia of unclear etiology. Arthralgia is defined as "pain in a joint." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 152 (31st ed. 2007). The Board notes that pain alone does not constitute a disability for VA compensation purposes; however, pain, as well as other symptoms, that are a residual of an in-service injury may serve as the basis for an award of disability compensation. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001) (a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury"). In this case, the VA examiner in November 2012 determined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury or event. The examiner explained that the Veteran's service treatment records confirm that the Veteran had a left knee MCL strain in February 1989. However, there is no evidence of a pattern of chronic disability as a result of the MCL strain. In support of this conclusion, the examiner noted that the Veteran completed airborne school in March 1990 after the injury, the separation physical examination recorded normal knees and there was no self report of or complaint of left knee pain at the time of the separation examination. This evidence indicates a self-limited, healed MCL strain without sequelae. The examiner also observed that the Veteran was provided with a VA examination in June 1992 and there was no established diagnosis of a left knee condition on that examination, which supports her opinion of a resolved, in-service left knee MCL strain. The examiner noted that there are no interval medical records to support an ongoing left knee condition from 1992 to the present. The Veteran established care with the Louisville, Kentucky VA Medical Center in 2005and he has had consistent, continuity of care to date. Despite this, there have been no subjective reports of left knee pain or work up for or treatment rendered for an ongoing left knee condition since the time of establishment of care (past seven years). The examiner determined that the calcifications in the area of the MCL on x-rays are not clinically significant. The examiner concluded that the current physical, subjective and objective findings are not consistent with the prior MCL strain or the radiographic findings as discussed above. She further explained that the most recent literature states that complications from a mild, Grade I MCL strain/injury are rare and limited knee function is not a typical residual. The Board finds this nexus opinion to be highly probative, because the examiner provided a clear rationale for her opinion that was based on a review of the claims file and it is consistent with the lay and medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Based on the foregoing, the Board concludes that the preponderance of the evidence shows that the Veteran does not have a current diagnosis of a left knee disability that is related to active military service. Accordingly, the Veteran's claim of entitlement to service connection for a left knee disability is not warranted. IV. Merits of the Claim for an Increased Rating The Veteran filed an increased rating claim for his service-connected PTSD in December 2002 asserting that his symptoms warrant a higher rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA 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 (2012). The Veteran's service-connected PTSD is presently assigned a 50 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is rated pursuant to the General Rating Formula for Mental Disorders. Id. Under the General Rating Formula for Mental Disorders, a 70 percent rating is prescribed 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is prescribed 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. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a 70 percent rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, or mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). The Global Assessment of Functioning (GAF) Scale is used to report the clinician's judgment of the individual's overall level of functioning. The GAF Scale is to be rated with respect only to psychological, social, and occupational functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994 (DSM-IV), at 44. GAF scores range from 1-100 with the higher numbers representing higher levels of functioning. A GAF score ranging between 41 and 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, occasional panic attacks) or serious impairment in social, occupation or school functioning (e.g., no friends, unable to keep a job). A score between 51 and 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score between 61 and 70 indicates 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, and has some meaningful interpersonal relationships. The Board notes that in addition to the Veteran's service-connected PTSD, the Veteran has a diagnosis of a personality disorder that is not service-connected. Under the law governing claims for increase in disability compensation, those manifestations of nonservice-connected disabilities are not to be used in establishing the evaluation of a service-connected disability. 38 C.F.R. § 4.14 (2012); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must be able to clinically distinguish by competent medical opinion, the extent of symptoms that are attributable to service-related causes from those that are not). Where it is not possible to separate the effects of service-connected and nonservice-connected conditions, all symptoms will generally be attributed to the service-connected disability. Mittleider, 11 Vet. App. at 182; 38 C.F.R. § 3.102 (2012). The VA examiner in December 2012 distinguishes some of the Veteran's symptoms of his service-connected PTSD from his personality disorder. Where the clinicians did not distinguish between the Veteran's PTSD and his other mental health disorders, the Board will consider all of the reported symptoms. The medical evidence of record consists of VA examination reports dated in November 2003, July 2005 and December 2012, treatment records from the Dallas Vet Center, private mental health records, and private PTSD evaluations dated in November 2003 and September 2004. Furthermore, the Veteran provided additional information about his PTSD symptoms in written statements and lay statements from his girlfriend, daughter and two former fellow inmates. The Board finds that this evidence, the most pertinent of which is summarized below, shows that the Veteran's condition as a whole more closely approximates the criteria of the current 50 percent disability rating A May 2003 private treatment record reveals the Veteran reported a history of paranoia, nervousness, rage, hypervigilence, difficulty sleeping due to recurring nightmares about combat, night sweats and olfactory hallucinations. He stated that the paranoia has worsened in the last seven years. The Veteran indicated that he is always suspicious of others and their "ulterior motives." In general he does not feel comfortable around others in casual or more intimate relationships. The Veteran reported that paranoia has become a way of life for him and he is always looking over his shoulder. He reported that after his return from combat he had difficulty maintaining employment and relationships, as well as drug addiction and a decreased need to maintain personal hygiene. The Veteran was incarcerated at the time he filed his claim for an increased rating for his PTSD in December 2002. Nonetheless, he was provided with a VA examination in November 2003. The Veteran reported a history of acting out as a teenager. He was once arrested because he had a weapon on him and he used cocaine when he was living in Puerto Rico. He joined the military when he was 18 and he reported that he did not use drugs in the military and for about two to three years after military service. Because of his life situation and his temperament such as an inability to hold down a job, he returned to cocaine and heavy alcohol use. His restless personality drove him from job to job. The Veteran was sent to prison for buying and selling marijuana. The examiner noted that the Veteran appeared to be clean with good hygiene and dressed in a prisoner's uniform. The examiner observed that the Veteran was a very excitable and very dense fellow, who easily raised his voice, but he was disciplining himself and he was careful about what he said. He talked rather fast. The Veteran was easily excitable and he admitted that it took all of his self-discipline to avoid trouble, as not to aggravate his stay in prison. The examiner determined that the Veteran's intelligence level was average and he showed mixed judgment. The examiner determined that the Veteran's PTSD was not really serious and aggravated. He noted that in general people on drugs like cocaine are not reliable informants and he had the impression that the Veteran was pushing for a more serious PTSD rating. He gave the Veteran the benefit of the doubt because two prior examiners gave him a diagnosis of PTSD and he joined them to a mild degree. However, the examiner did not see the Veteran's PTSD as a serious condition and he diagnosed the Veteran with mild PTSD. A private PTSD evaluation was conducted in September 2004. The Veteran reported both occupational and social impairment during the interview and he identified changes that began after he returned from combat. He noted marked decrease in work efficiency with periods of being unable to perform occupational tasks. His longest period of employment was with the United Parcel Services in 1992 for two years. The Veteran reported that he was able to maintain employment for that long because he worked alone performing simple, repetitive tasks, such as moving boxes. He received a degree in engineering electronics and although his employers were pleased with his ability and work when he was there, they complained about him not being reliable. The Veteran reported that he would leave work when he had panic attacks, which tended to occur when he had problems remembering simple instructions or how to work on the equipment. He also reported problems with focusing especially when he was working on the technical aspects of his position. He quit his jobs because he could not handle dealing with people. The Veteran stated that he had difficulty interacting with people for prolonged periods and preferred to be alone. He attributed this to his paranoia and suspiciousness with others and difficulty controlling his temper. He would get "snappy" and want to be violent towards someone. The Veteran described these symptoms as unpredictable and uncontrollable. He stated that his anxiety and anger interfered with his judgment at least 60 to 70 percent of the time. He also indicated that depression, poor motivation and lack of sleep due to combat related nightmares, which occurred two to three times a week, reduced his work performance. He also had decreased motivation. The Veteran indicated that he experienced depression and moodiness four to five times a week and anger or irritability eight to ten times per week. He copes with his anxiety by exercising three to four times a day. The Veteran reported difficulty in establishing and maintaining relationships. His longest relationship lasted two year, but it was "total chaos." His ex-girlfriend described him as irritable and mean. He also had a hard time trusting her. The Veteran lived with his brother for one month and he had problems trusting him. He stated that he was paranoid and argued with his brother all of the time. He thought his brother was trying to rob him and he felt like things were missing from his room. He also attempted to live with his mother and stepfather, but he could not trust either of them. He stated that he trusted his father, but after he died, he stopped communicating with his family altogether due to paranoia and suspiciousness of them. When the Veteran was released from prison, he was provided with another VA examination in July 2005. At that time, the Veteran lived in a halfway house. He was on work release and he worked in car lot detailing cars. He had no social life apart from some contact with a girlfriend when not at the car lot or the halfway house. The Veteran reported being close to both parents and his stepfather; however, they are all deceased. The examiner asked why he had described his own father in negative terms to the mental health professional he saw in prison and he reported that he "told her what she wanted to hear." The Veteran was not taking any medication for his PTSD. He showed some interest in receiving treatment from VA once he was out of the halfway house. The Veteran reported having nightmares three to four times a week about his traumatic experiences in Panama. He also noted that he would sometimes wake up in a sweat. He reported irritability, but could not indicate what would prompt this. The Veteran noted that he was able to contain "acting out." His main complaint was of considerable distrust of others and having to look constantly over his shoulder, which inhibited his desire to go to the movies or other public venues. The Veteran reported that he was not married, but he has a girlfriend and a daughter from a previous relationship. He indicated that the mother of his daughter triggers hostility in him, which he displaces unfairly by his estimate on his girlfriend. He denied any substance abuse since his incarceration for conspiracy of trafficking marijuana, which he denied. The Veteran reported impaired sleep and subjective depression over his incarceration. He gave no report of helplessness, hopelessness or worry. He noted that he had some thoughts of suicide in the past. The examiner provided the opinion that the Veteran's behavior during the examination was considered normal. He was fully alert and oriented with some anxiousness with clear thinking and normal thought process and unimpaired memory. There was no indication of atypical thought to include perceptual distortions or delusions. He reported in the remote past hearing aerobic voices outside of his head behind him when they were not actually there, but he seemed unperturbed by the recitation. Eye contact was consistently indirect. His affect was restricted with mood, if not euthymic, at least not one indicative of undue distress. Hostility seemed below the surface. The Veteran denied current lethality and his hygiene was impeccable. There was no indication of recent or remote memory impairment. The Veteran did not report hypervigilence other than his general distrust of people, which apparently is reported to be longstanding. The examiner noted that he also reported irritability without necessarily attributing it to service. He provided the opinion that the Veteran appeared to meet the criteria for posttraumatic stress disorder based on his report with respect to nightmares and his reaction to events in Iraq at present, which triggers resentment. The examiner asserted that the Veteran's PTSD seemed to be unchanged with respect to its severity and he is exhibiting ongoing mild symptoms mediated by more severe Axis II features. The examiner diagnosed the Veteran with PTSD and a personality disorder, not otherwise specified with antisocial and paranoid features. An October 2010 VA treatment record shows that the Veteran reported experiencing nightmares, insomnia, irritability and headaches. His nightmares occur a couple times a week. His wife indicated that the Veteran was frequently restless and moaning in his sleep. Sleep disturbance averages three hours per night. He also guards the house, isolates himself from family and friends and he has flashbacks of smelling burning flesh and oil. The VA treatment records indicated that his PTSD symptoms of irritability, sleep disturbance, loss of energy and social withdraw might have become worse since the last VA examination in July 2005. See VA treatment records dated in September 2010, October 2010 and November 2010. Thus, the Veteran was provided with another VA examination in December 2012. During the December 2012 VA examination, the Veteran reported that he experiences recurrent and distressing recollections and dreams of the event. He has intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran makes efforts to avoid thoughts, feelings or conversations associated with the trauma. He avoids activities, places or people that arouse recollections of the trauma. He has markedly diminished interest or participation in significant activities. The Veteran has feelings of detachment and estrangement. He experiences restricted range of affect and he has a sense of a foreshortened future. The Veteran reported persistent symptoms of increased arousal to include difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilence and exaggerated startle response. The examiner determined that the Veteran's current PTSD symptoms result in mild to moderate impairment in his social and occupational functioning. The examiner explained that the Veteran has a history of a personality disorder with antisocial and paranoid features which would be related to poorly modulated emotions and impulsive behavior. He is likely to have difficulty trusting others and forming meaningful relationships due to his personality features. The examiner determined that it is possible to differentiate what symptoms are attributable to his different mental health disorders. The examiner noted that the Veteran was exposed to combat stressors during his military service in Panama and during Operation Desert Storm. He reported intrusive recollections which are emotionally distressing. He also has problems related to defensive avoidance behaviors and anxious hyperarousal. The examiner explained that the personality disorder is characterized by an enduring pattern of traits and behaviors that result in impairment of social and occupational functioning. The examiner noted that the Veteran's current symptoms of PTSD are considered to be mild to moderate and would results in occupational and social impairment with reduced reliability and productivity at work. His nonservice-connected personality disorder would likely interfere with his capacity to form and maintain satisfactory interpersonal relationships. During the December 2012 VA examination, the examiner observed that the Veteran was clean and casually dressed. The examiner determined that the Veteran is able to maintain minimum personal hygiene. His psychomotor activity was unremarkable. The Veteran's speech was spontaneous and clear. He was cooperative with the examiner. The Veteran's affect was constricted and his mood was dysphoric. He was easily distracted. Orientation was intact. The Veteran has panic attacks three to four times a week. He does not have suicidal or homicidal thoughts. The Veteran has poor impulse control. Remote, recent and immediate memory was normal. The Veteran does not have problems with activities of daily living. A December 2002 letter submitted by the Veteran described some of his PTSD symptoms. He noted that while he was on active duty in the military he started having nightmares. He also had a lot of stress and anxiety. The Veteran noted that he was diagnosed with PTSD in service as a consequence of his combat experiences. Since military service, he has had nightmares where he can hear kids screaming inside cars engulfed in flames and sometimes he can smell the burning flesh during those nightmares. He usually wakes up sweating and in a panic. The Veteran also reported that he became hypervigilent, which makes him angry and unable to keep relationships for a long time. He noted that he never hears voices when he is awake. The Veteran asserted that prior to service he was a happy person, living a normal life with many friends. The Veteran's wife and his daughter submitted written lay statements in July 2008 describing their observations of how his symptoms have affected his life. They both noted that the Veteran has nightmares and wakes up in the middle of the night. His wife noted that on numerous occasions she has woken up to him whimpering and crying out for help in his sleep. She reported that upon awakening, the Veteran can be a little violent with no idea where he is and it takes a few minutes for him to reorient himself. She said the Veteran self medicates by working sixteen-hour days, then coming home, and drinking until he passes out. His wife stated that he is so inebriated that it sometimes helps him sleep. His daughter also noted that it is hard for her to watch her father wake up in the middle of the night with cold sweats and not knowing where he is. She believes that he is scared to fall asleep due to his nightmares. She has noticed that he works over twelve hours a day and then comes home and drinks alcohol just so he can sleep. A letter submitted in October 2004 from a man who was in prison with the Veteran stated that he had known the Veteran for eighteen months. He met the Veteran in the Communications Department of the Federal Corrections Institution. He noted that the Veteran is a good guy, but he gets irritated real quick and he is paranoid. The Veteran has mood swings and he tends to be violent. One of the main problems that he has had with the Veteran is his short memory and lack of concentration and attention with work. A November 2004 statement from another prisoner who attended a stress management program in prison with the Veteran noted that the Veteran was very outspoken and at times, irrational and angry with a pathological hate for Middle Eastern men. In post-session conversations, he could become excessively strident and incautious on the subject of the Gulf War and the current war. He thought the Veteran was insane for his outspoken statements, particularly concerning Muslims, as it is very easy to be assaulted or killed in prison over such things. He was uncertain that the counseling sessions helped the Veteran. A November 2004 statement from another prisoner that knew the Veteran also noted that although the Veteran appeared to be a man of education, he was in the habit of needing to be uplifted when he was depressed, unclean or unshaven. He reported that the Veteran contained a rage on any military action in the Middle East. In sum, the evidence of record shows that the Veteran has sleep impairment with nightmares of his trauma in service at least three to four times a week, intrusive thoughts, avoidant behavior, erratic behavior, moderate social impairment and some occupational impairment. In addition, the Veteran demonstrated at the July 2005 VA examination a restricted range of affect, irritability, hostility and social isolation. The Veteran also has symptoms of hypervigilence and paranoia. The Board recognizes that the some mental health specialists attribute the Veteran's paranoia and hypervigilence to his PTSD, while others attribute it to a personality disorder. As it is unclear whether the Veteran's PTSD is manifested by paranoia and hypervigilence, the Board will give the Veteran the benefit of the doubt and attribute the Veteran's paranoia and hypervigilence to his PTSD. The most recent VA examination noted that the Veteran has panic attacks three to four times a week. He also avoids situations that arouse his recollection of the trauma. Based on the foregoing, the Board finds that the evidence of record shows that the manifestations of the Veteran's PTSD has a moderate affect on his occupational and social functioning and more closely approximate the current a 50 percent disability rating. The Veteran's mental health examiners and clinicians have assigned the Veteran GAF scores for PTSD ranging from 45 to 65 from November 2003 to December 2012. This indicates that the Veteran has moderate to serious symptoms and moderate to serious difficulty in social and occupational functioning. The Board recognizes that while a GAF score may be indicative of a certain level of occupational impairment, it is only one factor in determining the Veteran's degree of disability. See Bowling v. Principi, 15 Vet. App. 1, 14 (2001). In this case, the Veteran's overall disability picture indicates that the Veteran's symptoms of PTSD more closely approximate a 50 percent rating. The evidence of record, the most pertinent of which was discussed above, shows that the Veteran's symptoms of PTSD do not result in occupational and social impairment with deficiencies in most areas or result in total occupational or social impairment. The Veteran has consistently denied experiencing suicidal or homicidal ideation. The Board recognizes that the Veteran experiences panic attacks three to four times a week and depression four to five times a week, but this does not demonstrate near-continuous panic or depression affecting his ability to function independently, appropriately and effectively. The treatment records consistently show that the Veteran does not neglect his personal appearance and hygiene. The overall evidence indicates that the Veteran does not have spatial disorientation and treatment records reflect that that the Veteran does not have disorientation to time or place. The Veteran's symptoms of PTSD do not manifest in obsessional rituals that interfere with routine activities. Although, there is evidence that the Veteran has impaired impulse control, the evidence shows that the Veteran has the ability to establish and maintain effective relationships. In this regard, the Veteran was married in 2008 and he has a good relationship with his stepson. He also has a 20 year old daughter, who he hasn't seen in a few months and a14 year old son, who he sees for two weeks in the summer. He does not communicate often with his siblings. With respect to employment, after the Veteran was released from prison in 2005, he was employed as a finance manager of an auto acceptance corporation from 2005 until 2010. He was fired from the job because he became argumentative with a customer and he has had difficulty finding another job. It appears that his personality disorder may have had an effect on his employment as the examiner in December 2012 determined that the Veteran is likely to have difficulty relating to coworkers, supervisors or customers in an occupation setting due to his personality disorder. Based on the foregoing, the Board concludes that the Veteran is not entitled to a disability rating in excess of 50 percent. The Board has considered whether staged ratings are appropriate. The Veteran's symptoms of PTSD have not fluctuated materially during the appeal period. Accordingly, staged ratings are not appropriate and the Veteran's symptoms of PTSD more closely approximate the current 50 percent disability rating for the entire appeals period. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for a mental disorder shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board notes that prior to being incarcerated, he had problems with staying employed. Furthermore, the Veteran was employed from 2005 to 2010 as a finance manager. Thus, there is no evidence in the record, including statements by the Veteran, that his PTSD has caused marked interference with his employment during the appeal period that is not already contemplated in the rating criteria. Furthermore, the medical record does not show that the Veteran's PTSD has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability; either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the December 2012 VA examination report shows that the Veteran reported that he was fired from his job as a financial manager in 2010 because he became argumentative with a customer. However, the December 2012 VA examiner determined that the Veteran's nonservice-connected personality disorder would likely interfere with his capacity to form and maintain satisfactory interpersonal relationship to include having difficulty relating to customers in an occupational setting. A June 2012 VA treatment record notes that the Veteran's felony makes it difficult for him to find employment. Therefore, based on the current evidence of record, it appears that the Veteran's current unemployment is not the result of his service-connected PTSD. Furthermore, the Veteran has not argued, and the record does not otherwise reflect, that his PTSD renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs