Citation Nr: 1330646	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  06-18 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee



THE ISSUES

1. Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD), to include adjustment disorder with depressed mood, prior to April 20, 2001.

2. Entitlement to a rating in excess of 30 percent for PTSD, to include adjustment disorder with depressed mood, from April 20, 2001 to July 31, 2005.

3. Entitlement to a rating in excess of 50 percent for PTSD, to include adjustment disorder with depressed mood, from August 1, 2005 to October 20, 2008.



REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Casula, Counsel 


INTRODUCTION

The Veteran had active service from August 1969 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned a 30 percent rating, effective from April 20, 2001.  By September 2007 rating decision, the RO granted a 50 percent rating, effective from September 1, 2006.  

In March 2008, the Veteran testified at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge.

In July 2008, the Board remanded this matter for further evidentiary development.  By April 2009 rating decision, the RO granted a 100 percent rating for PTSD, to include adjustment disorder with depressed mood, effective from October 21, 2008.  Thereafter, in November 2009, the Board again remanded this matter for additional development.  By July 2011 rating decision, the RO granted an earlier effective date of May 3, 1971, for the grant of service connection for PTSD with adjustment disorder and depressed mood.  The Veteran has continued his appeal for an even higher rating prior to October 20, 2008, and going all the way back to May 3, 1971; thus, the issues are as stated on the first page.

In June 2012, the Board remanded this matter in order to conduct further development, to include requesting information from the Veteran regarding any lay or medical evidence pertaining to the severity of his psychiatric disability from May 1971 to April 2001; scheduling him for a VA examination by a psychiatrist, and including both the old and new regulations pertaining to rating psychiatric disorders in the supplemental statement of the case (SSOC).  A review of the record shows that the Veteran was sent a letter requesting any additional evidence, he underwent a VA DBQ examination in August 2012 that included opinions, and an SSOC was issued.  Thus, there was substantial compliance with the Board's June 2012 remand.  Stegall v. West, 11 Vet. App. 268 (1998). 


FINDINGS OF FACT

1. Giving the Veteran the benefit of any doubt, effective prior to November 7, 1996, his PTSD, to include adjustment disorder with depressed mood, was productive of no more than definite social and industrial impairment. 

2. Giving the Veteran the benefit of any doubt, effective from November 7, 1996 to April 19, 2001, his PTSD, to include adjustment disorder with depressed mood, has been productive of no more than definite social and industrial impairment, or, under the revised criteria, was productive of occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks, although generally functional satisfactorily, due to symptoms such as depressed mood, anxiety, panic attacks, and sleep impairment, as well as flashbacks, nightmares, anger.

3. Effective from April 20, 2001 to July 31, 2005, the Veteran's PTSD, to include adjustment disorder with depressed mood, was manifested by no more than mild occupational and social impairment and symptoms such as depression; irritability; sleep difficulties/insomnia; waking up in colds sweats; nightmares and flashbacks; intrusive memories; anxiety; avoidance behavior; nervousness; feelings of guilt; anger; variable mood, and variable affect, with Global Assessment of Functioning scores between 50 and 55, productive of functional impairment no worse than comparable to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; however, the competent evidence of record for this period of time did not reflect any speech problems, hallucinations, suicidal or homicidal ideation, or inappropriate behavior.

4. Effective from August 1, 2005 to October 20, 2008, the Veteran's PTSD, to include adjustment disorder with depressed mood, was manifested by no more than reduced reliability and productivity due to such symptoms as:  anxiety, disturbances of motivation and mood, occasional reports of suicidal ideation, but no plan or intent, and difficulty in establishing and maintaining effective work and social relationships, and other symptoms not explicitly listed in the applicable rating diagnostic code including, but not limited to, sleep problems, insomnia, nightmares, depression, anxiety, flashbacks, intrusive thoughts, isolating behaviors, hypervigilance, concentration difficulties, and anger issues.


CONCLUSIONS OF LAW

1. Effective prior to November 7, 1996, the criteria for a 30 percent rating for PTSD, to include adjustment disorder with depressed mood, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4 .132, Diagnostic Code (DC) 9411 (1996). 

2. Effective from November 7, 1996 to April 19, 2001, the criteria for a 30 percent rating for PTSD, to include adjustment disorder with depressed mood, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4 .132, DC 9411 (1996); 38 C.F.R. §§ 4.7, 4 .130, DC 9411 (2012). 

3. Effective from April 20, 2001 to July 31, 2005, the criteria for a rating in excess of 30 percent for PTSD, to include adjustment disorder with depressed mood, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2012).

4. Effective from August 1, 2005 to October 20, 2008, the criteria for a rating in excess of 50 percent for PTSD, to include adjustment disorder with depressed mood, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008).  This notice must be provided prior to an initial decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a service connection claim:  (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm.  Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007).  However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2).  The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis.   Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

In a claim for increase, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.   Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009).

In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in January 2002, November 2004, and June 2012, that fully addressed the notice elements in this matter.  Further, since the first issue on appeal (entitlement to an initial compensable rating for PTSD, prior to April 19, 2001, is a downstream issue from that of service connection (for which the January 2002 VCAA letter was duly sent), another VCAA notice was not required.  See VAOPGCPREC 8-2003.  That portion of the appeal is from the initial rating assigned with the grant of service connection.  The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006).  The Veteran is exercising his right to appeal the rating assigned.  In addition, an April 2006  statement of the case (SOC) properly provided him notice of the criteria for rating PTSD, including what the evidence showed, and why the current rating was assigned.  The Veteran has had ample opportunity to respond and supplement the record, and, in addition, provided testimony in this matter in March 2008.  He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008).  The Board also notes that in a letter dated in April 2006, the Veteran was advised of how disability ratings and effective dates are assigned.  See Dingess v. Nicholson, supra.  He has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case.  Sanders v. Nicholson, supra.  The Board concludes that all required notice has been given to the Veteran.

Additionally, as noted above, in July 2008, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012).  Here, during the July 2008 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal, and information was also solicited regarding the nature, severity, and symptoms of his current psychiatric disability, and the treatment he has received regarding his psychiatric disorder.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, while the hearing discussion suggested that there may be medical treatment records that had not been associated with the claims folder, in a subsequent remand, such outstanding records were addressed.  Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claims for higher ratings for PTSD.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims.  The RO has obtained all identified and available service and post-service treatment records for the Veteran.  The Board also notes that the Veteran underwent several VA examinations in conjunction with his claim, regarding the severity of his PTSD with adjustment disorder and depressed, including in July 1971, November 2002, November 2003, January 2004, April 2005, and August 2012.  The Board finds that these VA examinations are adequate, and each appears to have included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record.  See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007).  It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.

The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II. Laws and Regulations

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 , Part 4.

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.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

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).  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).

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Complicating consideration of the Veteran's claim for a higher rating for PTSD, to include adjustment disorder with depressed mood, basically effective from May 3, 1971 to the present, is the fact that the criteria for rating psychiatric disabilities were revised, effective November 7, 1996.  Thus, the Board will proceed with consideration of this appeal, applying the version of the criteria which is more favorable to the Veteran.  However, the revised version of the rating criteria will only be applied from the effective date of the regulatory change.  VAOPGCPREC 3-2000 (Apr. 10, 2000), 65 Fed. Reg. 33,421 (2000); Bernard v. Brown, 4 Vet. App. 384 (1993).  Thus, the new regulations may only be applied from the date they became effective forward.  For the period through November 6, 1996, the Veteran's psychiatric disability(PTSD, to include adjustment disorder with depressed mood) must be rated under the older criteria, regardless of whether the new criteria are more favorable to his claim; while, for the period from November 7, 1996, forward, the Veteran's claim should be rated pursuant to the set of criteria which is more favorable to his claim.  DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. 

Prior to November 7, 1996, VA regulations provided that the severity of a psychiatric disorder was premised upon actual symptomatology, as it affected social and industrial adaptability.  38 C.F.R. §§ 4.130, 4.132 (1996).  Two of the most important determinants were time lost from gainful employment and decrease in work efficiency.  38 C.F.R. § 4.130 (1996). 

Prior to November 7, 1996, DC 9411 provided that a 10 percent rating was warranted where there was emotional tension or other evidence of anxiety productive of mild social and industrial impairment.  A 30 percent rating was warranted when there was definite impairment in the ability to establish and maintain effective and wholesome relationships with people, and the psychoneurotic symptoms resulted in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment.  38 C.F.R. § 4.132, DC 9411 (1996). 

In a precedent opinion, VA's General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree."  It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large."  VAOPGCPREC 9-93; 59 Fed. Reg. 4752 (1994).  The Board is bound by this interpretation of the term "definite."  38 U.S.C.A. § 7104 (c). 

Further, prior to November 7, 1996, DC 9411 provided that a 50 percent rating required that the ability to establish or maintain effective or favorable relationships with people be considerably impaired, and that, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels be so reduced as to result in considerable industrial impairment.  A 70 percent rating required that the ability to establish and maintain effective or favorable relationships with people be severely impaired, and that the psychoneurotic symptoms be of such severity and persistence that there was severe impairment in the ability to obtain or retain employment.  Id.  A 100 percent rating required that the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; psychoneurotic symptomatology bordering on gross repudiation of reality; or demonstrable inability to obtain or retain employment.  Id; see also Johnson  v. Brown, 7 Vet. App. 95 (1994) (holding that the criteria in 38 C.F.R. § 4.132  for a 100 percent rating are each independent bases for granting a 100 percent rating). 

Under the revised rating criteria, effective November 7, 1996, there is a general rating formula for mental disorders.  The new regulations at 38 C.F.R. § 4.130 established a general rating formula for mental disorders.  The formula assesses disability according to the manifestation of particular symptoms, providing objective criteria for assigning a disability evaluation. 

Under the revised rating criteria, a noncompensable rating is assigned for a mental condition that has been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication.  A 10 percent disability rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous mediation.  A 30 percent rating is assigned 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, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, DC 9411. 

A 50 percent rating is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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, and difficulty in establishing and maintaining effective work and social relationships.  Id.  

A 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships.  Id.  A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126. 

With regard to the use of the phrase "such as" in 38 C.F.R. § 4.130, ratings are assigned according to the manifestations of particular symptoms.  The use of the phrase "such as" 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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Thus, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. 

The Board also notes that in assessing a psychiatric disability, a GAF score is often assigned.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.  See DSM-IV; Richard v. Brown, 9 Vet. App. 266 (1996).  An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned.  The percentage is to be based on all the evidence that bears on occupational and social impairment.  38 C.F.R. § 4.126; VAOPGCPREC 10-95.  A GAF score of 41 to 50 denotes serious symptoms, or any serious impairment in social, occupational, or school functioning.  A GAF score of 51 to 60 indicates that the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning.  Carpenter v. Brown, 8 Vet. App. 240 (1995).  The Court has noted the importance of GAF scores in evaluating mental disorders; however, a GAF score is only one aspect of numerous facets which go into rating a psychiatric disability.  Id.   

III. Compensable Rating for Period Prior to April 20, 2001

The Veteran contends he should be entitled to a compensable rating for his service-connected PTSD, to include adjustment disorder with depressed, prior to April 20, 2001.  

Service treatment records (STRs) document that the appellant was seen in December 1970 complaining of nervousness following the death of a buddy. Librium was prescribed at that time. 

In May 1971, the Veteran filed a claim for service connection for "nerves".

On a VA examination in July 1971, the Veteran reported that he had had symptoms of "nervousness" after two of his buddies were killed in Vietnam, and that he had been seen by a medical officer and prescribed mild tranquilizers for a time with considerable relief.  He stated that since returning from service, he had not experienced anxiety or depression, and that he ate and slept well and planned to begin school in September.  He denied difficulty with interpersonal relationships and basically felt well.  He was on no drugs or medication at that time.  On examination he was found to be pleasant and cooperative,  and in no acute distress.  He was oriented in all spheres and appeared to be of average intelligence.  His memory was intact, and judgment and insight were adequate.  There was no suggestion of psychotic thinking, and no evidence of severe anxiety or depression. The diagnosis was anxiety reaction, acute, by history, and no evidence of psychiatric disorder at the present time.  

VA treatment records showed that in March 1975 the Veteran complained of nervousness, hot flashes, and sweating.  In July 1975, he was prescribed Valium and medication to help him seep.  In July, August, and September 1975 he reported that he had suffered personal and marital problems prior to a recent physical illness; that he felt anxious - as if he was going crazy, and that he was quick tempered.  In September 1975 indicated that the Veteran was prescribed Valium but no diagnosis was provided.  On December 2, 1975, he complained of "nerves" and that his "hands get shaky" and increased night sweats, but on examination he was in no apparent distress, and the assessment was that it was doubtful that there were any significant problems.  On December 10, 1975, while being treated for a condition not pertinent to this appeal, the Veteran complained of 'nervousness', and "fear without reason", tremors of the hands off and on for at least four months", as well as palpitations and sweating.  The assessment was sarcoidosis and no hyperthyroidism.  In January 1976, he reported feeling better and had increased appetite, increase weight, no palpitations, and no sweating.  In September 1976, he reported mental pressures and problems, and that he was getting a divorce and going to school.  In March 1978, the Veteran reported no specific symptoms other than episodes of nervousness, hot flashes, and sweating.  He reported that these attacks occurred at any time.  It was noted that these attacks did not seem to have any kind of profile.  In August 1981, he again reported nervousness.  

VA treatment records showed that in May 1998, the Veteran reported that he felt good but had domestic stress.  In April 2000 the Veteran reported that he was feeling calmer since his divorce went through.  

On a VA examination in August 2012, the diagnosis was PTSD, chronic, and the examiner indicated that the Veteran's level of impairment due to all mental diagnosis was total occupational and social impairment.  For recent history, it was noted that the Veteran lived alone and was last employed during 2000 when he was forced to leave his truck-driving position after 30 years due to his inability to tolerate stressors associated with the position.  The VA examiner was asked to indicated what findings and opinions supported a medical opinion regarding the Veteran's mood symptoms and severity for the period between May 3, 1971 and April 20, 2001.  The examiner noted that a medical examination conducted on July 29, 1971 referred to anxiety that the Veteran experienced during service after the death of friends, and that records also reveal later complaints of tremors and other symptoms of anxiety by the Veteran during the late 1970s and later.  It was noted that the Veteran received psychiatric treatment from VA throughout recent years and that he was considered 100 percent disabled by VA and SSA (Social Security Administration).  The examiner noted that it clear that the Veteran struggled with anxiety symptoms that impacted many areas of his life since he left Vietnam, but that he had maintained consistent employment for 30 years.  The VA examiner found that in light of the above noted considerations and the VA mandate to find in favor of Veteran when competing hypotheses appeared equally compelling, the examiner believed that the Veteran's psychiatric behavioral (PTSD) severity between May 3, 1971 and April 20, 2001 fell at the level of functional impaired described by DBQ as "occupation and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking, and/or mood" and that this level of severity would roughly correspond to a GAF score in the 50s.  The examiner was also asked to provide a discussion as to whether the reported symptoms of anxiety associated with the Veteran between 1975 and 1998 were manifestations of PTSD versus manifestations of physical disorders.  In response, the VA examiner indicated that he was not a physician (but was a psychologist), however, it seemed clear that the first mention of anxiety symptoms in the Veteran's case arose in reports related to the deaths of his friends in combat.  In light of that fact, the Veteran's symptom reports, and the fact that his current psychiatric disorder was directly related to past combat exposure, the examiner was willing to opine the Veteran's anxiety symptoms between 1975 and 1998 were most likely related to the service-connected PTSD rather than medical complications.  Finally, the examiner indicated he was unable to conduct a detailed review of the General Formula for Psychoneurotic disorder that was effective prior to October 1996 because he simply could not find the discourse among the tabbed items in the claims folder.  

In a March 2013 VA DBQ examination report, the examiner noted that he had been unable to answer the third question asked, regarding a discussion as to the impact of the Veteran's service-connected psychiatric disability during that time from (1875 to 1998( with regard to the General Formula for Psychoneurotic Disorder that was effective prior to October 1996).  The examiner noted that he found a tabbed page in the Veteran's claims folder that detailed changes to the rating schedule that occurred in February 1988, and the examiner presumed that these remained in effect until 1996 (which the  Board notes is correct).  The examiner opined that it was certainly clear the PTSD from which the Veteran suffered would have been placed in the category of "anxiety disorder" in 1988, but it would have been classified in the category of psychoneurotic disorders prior to that.  The examiner further opined that based on the reasoning detailed in the August 2012 report, the Veteran's level of impairment due to PTSD was at least as likely as not within the range of "extensive" impairment between 1975 and 1988 according to what the examiner understand to have been the General Formula for Psychoneurotic Disorders that was effective prior to October 1996.

In order for a compensable rating to be granted prior to November 7, 1996, the competent evidence of record would basically need to show, pursuant to the old regulation, that the Veteran experienced emotional tension or other evidence of anxiety productive of mild social and industrial impairment, or that there was definite impairment in the ability to establish and maintain effective and wholesome relationships, and that the psychoneurotic symptoms resulted in such reductions as to produce definite industrial impairment.  38 C.F.R. § 4.130, Diagnostic Code 9411 (1996).  In reviewing the record on appeal, the Board concludes that the objective evidence as a whole, dated prior to November 7, 1996, shows that under the old schedular criteria for a psychiatric disorder, his psychiatric symptoms were not productive of considerable impairment in the ability to establish or maintain effective or favorable relationships or productive of considerable industrial impairment.  Even though the VA examiner in 2012/2013 seemed to opine that there was considerable impairment, the Board finds that a review of the scant evidence during that period reveals specifically, the Veteran was not yet receiving therapy, but reported nervousness and anxiety, as well personal and marital problems, and he was starting to attend school.  

Further, on review of the competent evidence of record, basically between May 3, 1971, and November 7, 1996, which primarily includes VA treatment records and VA examination reports, , the Board notes that the Veteran's psychiatric symptoms were manifested during that period primarily by complaints of nerves and nervousness, anxiousness, nightmares and night sweats, and problems with sleep, but that his objective examinations were for the most part unremarkable.  The evidence of record dated prior to November 7, 1996, is scant, but does show that the Veteran had complaints of nervousness and anxiety, however, he was able to work.  Additionally, an opinion was sought from a VA examiner in 2012, in order to answer specific questions that were asked regarding the severity of the Veteran's service-connected PTSD, to include adjustment disorder with depressed mood.  In that regard, the examiner noted the Veteran's anxiety and opined that a review of the Veteran's psychiatric severity between May 3, 1971 and April 20, 2001, fell at the level of functional impairment contemplated by the revised criteria for a 50 percent rating for a psychiatric disorder.  Further, the examiner opined that the Veteran's anxiety symptoms between 1975 and 1998 were most likely related to the service-connected PTSD rather than medical complications.  Finally, the VA examiner opined that the Veteran's level of impairment due to PTSD was at least as likely as not within the range of extensive impairment between 1975 and 1988, according to what the examiner understood to have been the General Formula for Psychoneurotic Disorder, effective prior to November 1996. 

Based on foregoing, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran experienced considerable industrial impairment due to his psychiatric symptoms during this period.  Thus, he should entitled to a compensable, 30 percent rating, for PTSD, to include adjustment disorder with depressed mood, for the period from May 3, 1971 through November 6, 1996.

In considering whether a compensable rating is warranted, effective from November 7,1996, the Board turns to the competent evidence of record.  In that regard, although the evidence is again scant for that period of time, based on the VA treatment records, and the VA examiner's report and opinions rendered in 2012 and 2013, the Board finds that the evidence is again in relative equipoise as to whether the Veteran experienced considerable industrial impairment due to his psychiatric disability, and as to whether the criteria for a 30 percent rating for PTSD, to include adjustment disorder with depressed mood, have been met from November 7, 1996 to April 19, 2001.  Pursuant to the revised regulation, in order for a rating in excess of 30 percent to be granted, the competent evidence of record would need to show occupational and social impairment with reduced reliability and productivity due to symptoms such as those listed in the criteria for a 50 percent rating under Diagnostic Code 9411, and/or as other symptoms attributed to his service-connected psychiatric disability, to include PTSD.  38 C.F.R. § 4.130, Diagnostic Code 9411; Mauerhan v. Principi, supra.

Given the foregoing, the Board finds that the positive evidence is in a state of equipoise with the negative evidence, regarding the Veteran's claim of entitlement to a compensable rating, effective from November 7, 1996.  While the Veteran clearly had fluctuating PTSD symptoms which affected his ability to perform some tasks and affected his social abilities, he had maintained some family relationships and he was a student.  With consideration of the Veteran's complaints, symptoms, and clinical findings of record, and after resolving all reasonable doubt in his, the Board will conclude that his PTSD more nearly approximated the criteria for a 30 percent schedular rating, effective from November 7, 1996.  38 C.F.R. § 4.130, DC 9411.  In considering whether an even higher rating of 50 percent would be warranted for the Veteran's PTSD, to include adjustment disorder with depressed mood, under the old or the revised criteria, the Board concludes also that the preponderance of the evidence does not approximate the severity of the symptoms listed in the criteria for the assignment of a 50 percent rating, either prior to subsequent to November 7, 1996.  See 38 C.F.R. §§ 4.7, 4.130. 

In light of the holding in Fenderson, the Board has also considered whether any additional "staged" ratings should be assigned for the Veteran's PTSD, to include adjustment disorder with depressed mood.  Based upon the record, however, the Board finds that, at no time since the initial award of service connection, dating back to May 1971, has the Veteran's service-connected psychiatric disability been more disabling than as currently rated under the present decision of the Board, and there is no indication that a staged rating is warranted.  Fenderson v. West, supra. 

Given the foregoing, and after resolving any reasonable doubt in the Veteran's favor, the Board concludes that his PTSD, to include adjustment disorder with depressed mood, more nearly approximates the criteria for a rating of 30 percent, effective prior to April 20, 2001.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV.  Rating in Excess of 30 Percent from April 20, 2001 to July 31, 2005

1. Factual Background

Received from the Veteran in January 2002 was a statement in which he reported having trouble falling and staying asleep, and had nightmares of Vietnam two to three times a week, and woke up frightened and confused, and had thoughts and images of seeing his dead friends.  He reported that sometimes he found himself "back in the war" and it took him several minutes to snap out of it.  He reported getting nervous when things reminded him of Vietnam and his hand started sweating and his heart would speed up, which could happen at any time or place.  He reported he avoided other Vietnam and things that might remind him.  He reported he was depressed most of the times and some days were worse than others.  He considered his symptoms to be severe and claimed that they interfered with his ability to socialize and get along with others, and that he did not know how to deal with them, and the best thing he could do was avoid them.  He reported that his feelings of guilt and anger about Vietnam never seemed to go away.  He reported he was in therapy at the Milwaukee Vet Center, but could not function well talking about what happened and needed to take breaks, and that writing this statement caused him to get jumpy and aroused.   

Received in March 2002 was a letter from a social worker at the Milwaukee Vet Center, who reported that the Veteran was first seen there in April 2001, and was involved in individual counseling for PTSD until February 2002.  It was noted that the Veteran had reported that after returning home from Vietnam he began experiencing severe to chronic emotional and psychological problems.  He reportedly began experiencing sleep problems, including nightmares and night sweats.  He self medicated to help with sleep, but continued to experience these sleep problems and averaged two hours of sleep per night.  He lived in constant fear and was constantly waiting for something bad to happen.  He reported severe to chronic problems with anger/rage.  He claimed he had been divorced two times because of his anger.  He had reportedly been emotionally numb since returning from Vietnam, and claimed he had not been able to establish and maintain any type of relationships, could not get close to people, and had no friends since returning from Vietnam.  He tended to stay to himself and isolated from people and tried to avoid anything that reminded him of his experiences in Vietnam.  He indicated he was moving out of state soon and was not sure if he would continue his PTSD counseling because thinking and talking about his experiences caused him to experience severe to chronic emotional and psychological distress.  He reported severe problems with survivors guilt since he returned home alive from Vietnam, and that he experienced problems with flashbacks and intrusive thoughts since returning from Vietnam.  He reported visual and audio hallucinations since Vietnam, and that he heard helicopters at times and was overwhelmed with fear that the helicopters were going to be shooting.  He experienced chronic startle response problems since returning from Vietnam, and claimed he was so jumpy he became physically ill.  He became so overwhelmed by stress that he stopped eating and eventually his wife forced him to eat.  He had suicidal thoughts since Vietnam, but to date had not made plans or attempts.  He also reported having homicidal thoughts since returning from Vietnam and had attempted to choke his wives while married to them, and had been involved in several fights, but claimed that to date his homicidal thoughts were just thoughts and he had made no plans or attempts to hurt anyone.  He reported seeing a psychiatrist at the Milwaukee VA Hospital after returning from Vietnam in 1971, and stated he tried to act normal and cover up his problems because he was afraid that the psychiatrist would see his problems and lock him up in a mental health ward.  The Vet Center social worker opined that it was apparent that the Veteran suffered from severe to chronic PTSD and had been suffering from PTSD since returning from Vietnam.  The diagnoses included PTSD, severe to chronic.  Included with the letter, from the Vet Center social worker, were progress notes dated from April 2001 through February 2002, which were basically summarized in the social worker's letter dated in March 2002. 

On VA examination in November 2002, it was noted that the Veteran reported no prior psychiatric hospitalizations and no prior psychiatric care, except for seeing a doctor twice ten years ago for a sleep problem.  He reported having frequent severe psychiatric symptoms, with no remissions over the last year.  He reported his sleep was chronically poor, that he had nightmares about Vietnam two or three times per week, and that when he woke up he was sweaty, nervous, and scared.  He reported flashbacks of being in Vietnam, approximately five times per year.  He tended to avoid people, gave examples of being sensitive to loud noises, and now had an exaggerated startle response, claiming that these symptoms had not remitted over the years.  He reported he married in June 2001, and had two grown children with whom he gets along, but it was noted that he had restricted social relationships and described himself as a loner.  He was unable to give activities or leisure pursuits that he currently participated in.  He denied a history of suicide attempts, although he thought about it.  He was able to take of his routine responsibilities of self-care .  The examiner found that the Veteran seemed to have adequate family role functioning and had a restricted range of social interpersonal relationships and few recreational and leisure pursuits .  On mental status examination, the Veteran was alert, oriented, and cooperative and had good grooming and hygiene.  He had fair eye contact, and his speech was clear.  His psychomotor state was slightly retarded, his mood was dysthymic, and his affect was restricted.  His thought content showed no auditory or visual hallucinations, and he had no delusions.  He had no suicidal or homicidal ideation, and his thought processing showed no looseness of associations, flight of ideas, circumstantiality, or tangentiality.  His judgment and insight were fair about his illness, and he had the ability to maintain minimal personal hygiene.  He had no memory loss and no impaired impulse control.  The examiner opined that it was unclear if the Veteran met the DSM-IV stressor criteria, but that he did report some symptoms consistent with PTSD.  He had nightmares about Vietnam in which he woke up sweaty, nervous, and scary, and he occasionally had flashbacks to Vietnam.  He tended to avoid people and had some decreased interpersonal functioning, although he was recently remarried.  The diagnoses included anxiety disorder, rule out PTSD, and alcohol abuse.  His Global Assessment of Functioning (GAF) was 50.  The examiner opined that the Veteran had decreased psychosocial functioning and decreased quality of life secondary to his psychiatric symptoms.  The examiner recommended that the Veteran undergo psychological testing to determine the linkage between the PTSD symptoms and the aforementioned changes in his functional status and quality of life.  

In a statement received in April 2003, the Veteran reported he had trouble falling and staying asleep, and could not concentrate because he was seeing dead bodies.  He avoided anything associated with his trauma, and claimed he hated this claim because it reminded him of too much.  He also avoided watching this new war because it depressed him and caused fear.  

On VA examination in November 2003, the Veteran reported that his past psychiatric history was minimal, and he had seen a psychiatrist only twice, when he came home for service and again about three years ago, and he also saw a social worker at a Veteran Center for a period of months.  He claimed that since his return from service, he stated that he had been distanced from his family and others, more isolated, and had nightmares about three times a week about Vietnam related instances.  He continued to feel guilty about his friends deaths, had little pleasure, and had at times thought about suicide, but denied such thoughts now and denied any attempts.  He reported he had been retired for about a year and a half on his 30 year pension with the Teamsters.  He had been married three times, and his recent marriage was two and a half years ago.  He described some difficulty in this marriage, but denied physical violence with his wife, which the examiner found inconsistent with some documentation in the chart that stated he reported he had choked his previous wives.  He described that approximately five times a year he was so preoccupied with Vietnam issues that he lost touch with his current reality, and also described an increased startle reflex.  He described his current functioning as spending his days doing things with his father.  On mental status examination he was cooperative.  His mood appeared dysthymic, but he denied depression.  His affect was restricted, and he did show some affect change when he talked about the death of his friends in Vietnam.  There was no loosening of association and no flight of ideas.  His thoughts were goal directed and coherent, although mildly psychomotor slowed.  He denied current suicidal ideation, and denied violent ideation.  He acknowledged suicidal thoughts in the past, with no attempts.  He did report some periodic disassociation several times a year.  He had no overt memory impairment.  The examiner opined that the Veteran's Vietnam experiences did appear to have affected his life, and he did have some PTSD symptoms, but did not have the full spectrum of PTSD, but more of an adjustment disorder with depressed mood.  The examiner felt that the Veteran had never been adequately treated for his depression symptoms.  The diagnoses included adjustment disorder with depressed mood, and his GAF score was 50.  The examiner opined the Veteran's prognosis for improvement was guarded, but that if he had treatment for depression or a significant period of abstinence, both of these issues being addressed could result in a significant improvement of functional status.  

On a VA examination in January 2004, the Veteran reported that he had a job driving a truck and took a 30 year retirement two years prior.  He reported he was not performing well and just wanted out.  He noted that over the years he continued to have near panic attacks whenever he was in an area with lots of Vietnamese looking people.  He had had  three marriages, with the current one in progress for three years.  He had a son, aged 30, from his first marriage.  He admitted that drinking was a factor potentially in these marriages, and noted that he had dreams and nightmares, and his wife thought he was crazy.  He reported he first sought treatment for his symptoms in 1975 or 1976 at Milwaukee VA", and that they him some pills that helped him sleep and which he took for several months.  He reported that years later, he returned to the Milwaukee VA briefly for a Veterans support group, but other than that, until the past six months, he had had no therapy.  It was noted that he had been placed on a sleeping pill and reported his sleep had improved.  He claimed that prior to that, he could get sleep only with the assistance of several beers.  He claimed he had nightmares and intrusive thoughts ever since Vietnam, and had tended to avoid any activities that remind him of Vietnam, including avoiding other Veterans.  He continued to have a startle response, and often whole form sleep with dreams of Vietnam.  He was very reluctant to discuss his Vietnam experiences and he had isolations of affect when discussing them.  He currently had Vietnam related dreams and intrusive thoughts related to Vietnam about three times weekly.  He responded to any war news or discussion with increased anxiety and intrusive thoughts.  He felt like people were always watching him, and he had near panic attacks whenever reminded of the situation, although he denied outright panic.  He avoided all war movies, and had never discussed his Vietnam experiences with his father who was a World War II combat veteran.  Since his retirement two years prior, in a typical day he stayed close to home, and had no close friends or activities he enjoyed.  He admitted he was a loner without hobbies.  He had a pet dog and did chores around his home.  He reported that his temper was short, and he was not active in church or veteran's organizations.  He watched minimal television, and reported he continued to have attacks of the night where he awakened thinking back in Vietnam and that at such a time he had kicked his wife.  He claimed his wife was very tolerant and supportive of him.  On mental status examination he had moderate depression, and he volunteered minimal information related to his symptoms and was very reluctant to discuss his Vietnam experiences. There were no delusions or hallucinations, and he admitted occasional suicidal ideation but had denied plans, intents or previous efforts.  He noted long-term trouble with concentrating,   He was aware of current events, and was able to discuss them with insight.  In summation, the examiner noted that since his return from Vietnam, the Veteran reported experiencing dreams, intrusive thoughts, and anxiety attacks related to his Vietnam experiences.  The Veteran reported that over the past three years, he had increased depressive symptoms and continued to have nightmares related to his Vietnam experiences.  It was also noted that over the past three years he reported increased depressive symptoms and that he continued to have nightmares and intrusive thoughts related to Vietnam, at least three or more times a week.  He had a startle response, and avoided anything which reminded him of Vietnam.  He had particularly upset by increased war discussion and news since 9/11.  The diagnoses included mixed anxiety depression with all symptoms of PTSD except for overwhelming trauma, and episodic alcohol abuse.  It was noted that the symptoms the Veteran current experienced were a continuation of those that began while he was in Vietnam.  A GAF score of 55 was assigned based on his psychiatric symptoms.  

In a statement received in July 2004, the Veteran reported that he slept 3 to 4 hours a night, and had panic attacks 2 to 3 times per week where his hands sweated and his heart beat fast whenever he thought about Vietnam and his trauma.  He avoided anything associated with the war, but also noted that this seemed impossible.  He claimed he moved away from Milwaukee because many people reminded him of his war experience, and he could not get close to people after his friends died.  He also reported he had anger and severe guilt and had not adjusted well overall.  He claimed he continued to have thoughts and flashbacks, especially on rainy and muggy days and nights.  He claimed he could not work anymore because he had trouble concentrating and could not stay focused on one thing.  He reported that his anger, nervousness, and temper made it hard to establish relationships. 

Received from the Veteran in August 2004 was a formal claim for a total rating based on individual unemployability due to service-connected disability (TDIU rating), in which he claimed his PTSD prevented him for securing or following any substantially gainful occupation.  He claimed he last worked full time as a truck driver, and became too disabled to work, as of May 2002.  A Request for Employment Information (VA Form 21-4192) was received in August 2004, indicating that the Veteran worked as a truck driver from March 1996 through May 2002, at which time he retired.  

Treatment records from the Vet Center in Memphis showed that in October 2004 the Veteran was seen for intake and reported an increase in flashbacks, and he needed help to cope.  On mental status evaluation his appearance was neat, his speech and affect were appropriate, his manner was friendly and cooperative, and he was oriented times three.  He was relaxed and at ease, had good judgment, and had normal memory function.  He had no delusions, disorganized thinking, or hallucinations.  He reported having sleep disturbance involving waking up at night due to dreams and nightmares, and only sleeping three hours a night.  He had a low energy level and had suicidal thoughts but not attempts.  He denied homicidal thoughts.  It was noted that he was married, but they were not real loving of each other.  The Vet Center counselor noted that the Veteran had no evidence of a thought disorder, and while there was evidence of depression, he claimed no suicidal or homicidal ideation.  In February 2005, he reported isolating himself and having problems with anger.  He was to attend weekly group meetings to help him learn to cope with his anger, isolation, and stress.  

On VA examination in April 2005, the Veteran reported he saw his father every two to four weeks, and his mother was deceased.  He reported he saw his two brothers who live in Milwaukee not too long ago, and he kept in touch with another brother in Arizona by telephone.  He did not maintain much contact with his sisters.  He had a son from his first marriage, who lived in Minnesota, with whom he spoke with by telephone occasionally.  He reported he retired in 2002, from working as a truck driver for over 30 years.  He indicated he took an early retirement and received a small pension and was "looking into" Social Security disability.  On clinical interview, the Veteran was found to be dressed in neat and clean appearing attire, with good grooming and hygiene.  His speech was in a moderate tone and pace, and there was no evidence of tangentiality, loose associations, or flight of ideas.  No delusional material was elicited, no hallucinations were reported, and his thoughts appeared well formed and articulated.  He reported sensory anomalies which he associated with anxiety.  His mood was cooperative and congenial, and his affect was congruent, ranging from euthymic to mild tearfulness when he spoke of the death of his two buddies in Vietnam.  He reported past thoughts of suicide, but no plans and no current homicidal or suicidal ideation was elicited.  He reported persistent anxiety symptoms as well as specific symptoms he related to his service in Vietnam.  The examiner did not believe that the Veteran met the full criteria for a diagnosis of PTSD, but believed he had a persistent problem with anxiety (and mixed with depression at times, likely due to recall of past life events as well as ongoing medical problems), which was beyond an adjustment reaction.  He reported he went to sleep between 11:30 and 12:00 at night, and woke up around 2:30, and could be up and down over the rest of the night, and finally got up at 6:30 in the morning.  When asked about his daily activities, the Veteran said he did "nothing", but then indicated he had some dogs and went out with them.  He denied any hobbies, reading, or watching much television, but did watch some sports.  He used to enjoy music and movies.  He also mentioned his mother-in-law maintained a small garden at their home and he occasionally went out there with her.  His wife went to church on the weekend, but he did not go with her.  The Veteran did all of his own self-care activities, and did some house chores, and some of the yard and repair work around the house.  The examiner summarized that the Veteran continued to report symptoms which appeared most consistent with a generalized anxiety disorder, even though he reported some PTSD-type symptoms, he did not appear to meet the full criteria for a diagnosis of PTSD. He continued to use alcohol, which complicated his psychiatric situation.  Overall the VA examiner rated the Veteran as moderately impaired, secondary to anxiety symptoms.  The diagnoses included generalized anxiety disorder, by long history and continued symptom report.  A GAF score of 51-55 was assigned.  

A VA treatment record date din April 2005 showed that the Veteran complained of anxiety, depression, and a long-standing problem with insomnia.  

In a statement received in October 2005, the Veteran reported that after Desert Storm began, it brought on a lot of nightmares and sleepless nights.  He claimed that his rage and fear resurfaced, that he had become afraid again, and that the Iraq War pushed him over the edge.  

On his substantive appeal (VA Form 9), the Veteran reported that he was being treated for his psychiatric disorder with medication and ongoing weekly group therapy and individual counseling.  

2. Analysis

The Veteran contends he should be entitled to a rating in excess of 30 percent for his PTSD, to include adjustment disorder with depressed mood, effective from April 20, 2001 to July 31, 2005.  In order for a higher rating of 50 percent to be assigned, the evidence of record would have to show PTSD of such a magnitude to produce occupational and social impairment, with reduced reliability and productivity, due to symptoms such as those outlined in the criteria for 50 percent under DC 9411, as well as due to other symptoms attributed to his service-connected PTSD, to include adjustment disorder with depressed mood.  Mauerhan v. Principi, supra.

The Board has considered the available pertinent evidence of record, covering the pertinent period, and concludes that the next higher rating of 50 percent is not warranted for that period, under the applicable criteria and Fenderson, supra.  As detailed above, the competent and pertinent evidence of record, from April 20, 2001 to July 31, 2005, consists of VA treatment records, VA examination reports, and Vet Center records.  In that regard, the record reflects that he reported having sleep difficulties, anxiety, depression, nightmares, flashbacks, anger/irritability, hypervigilance, strained family relationships, problems with work, and isolative behaviors, due to his PTSD, to include adjustment disorder with depressed mood.  

With regard to whether a higher rating of 50 percent is warranted during the time period in question (from April 2001 through July 2005), the Board notes that the Veteran's disability picture, during that time period, more nearly approximated the criteria for a 30 percent rating than for a 50 percent rating.  38 C.F.R. § 4.7.  With regard to the specific criteria for a 50 percent rating, the Board notes that there have been minimal to no findings that the Veteran has a flattened affect.  Rather, on objective examinations his affect was variously found to be restricted, congruent, and appropriate.  Further, on the VA examinations the Veteran's mood was noted to be depressed on some occasions, but he was also found to be alert and oriented with normal speech, no thought disorder, no apparent cognitive impairment, no inappropriate behavior, and his verbalizations were coherent, relevant, and goal-directed.  There was also no evidence of hallucinations, delusions, or obsessive or ritualistic behavior, and he denied suicidal and homicidal ideation.  While it was noted that the Veteran had a problematic marriage and tended to isolate himself, it was also noted that the Veteran maintained some family relationships, and that he had retired from his work as a truck driver in 2002, after 30+ years.  VA and Vet Center treatment records show that the Veteran received ongoing therapy for his psychiatric symptoms.  While the Veteran has essentially asserted that his PTSD, to include adjustment disorder with depressed mood, for the time period in question, is worse than provided for in the 30 percent rating, the Board notes that the evidence of record, dated from April 2001 through July 2005, simply does not show that his disability picture due to his service-connected PTSD approximates the criteria for a 50 percent rating.  38 C.F.R. § 4.7.

With regard to the Veteran's symptoms that have not been specifically listed in DC 9411, as noted above, the symptoms listed in the criteria for a 50 percent rating in 38 C.F.R. § 4.130 that follow the phrase "such symptoms as", are not intended to constitute an exhaustive list, but rather to serve as "examples" of the type and degree of the symptoms, or their effects, which would support the assignment of a particular rating.  Mauerhan v. Principi, supra.  The Board is thus aware that the symptoms listed under the 50 percent rating are examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 50 percent rating.  Id.  Thus, even with consideration of Mauerhan v. Principi, and the competent evidence of record, to include such symptoms as sleep problems, nightmares, flashbacks, insomnia, and anger/irritability, the Board concludes that symptoms of such a magnitude to approximate the criteria outlined in DC 9411, for a 50 percent ratting, have not been shown.  In that regard, the Board also notes that the VA records and VA examinations do not show most of the typical symptoms listed in the criteria for a 50 percent rating, nor are similar symptoms shown.  Mauerhan v. Principi, supra.

Further, a review of the evidence of record for that time period shows that the Veteran's GAF scores ranged from 50 to 55.  Thus, it appears that his GAF scores have suggested at most moderate symptoms or moderate impairment in social or occupational functioning.  The GAF score is, however, only one factor to be considered in ascertaining the degree of impairment caused by psychiatric illness.  In that regard, the Board finds that considering the GAF scores of 50 to 55 does not tend to support the assignment of a 50 percent rating for the time period in question. 

In summary, the preponderance of the evidence reflects that from April 20, 2001 to July 31, 2005, the Veteran's PTSD, to include adjustment disorder with depressed mood, symptoms did not, at any time, approximate the criteria for a 50 percent rating; thus his service-connected PTSD to include adjustment disorder with depressed mood was no more than 30 percent disabling, for the pertinent period of time.  Fenderson, supra.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim for a rating in excess of 30 percent for PTSD, to include adjustment disorder with depressed mood, for the period April 20, 2001 to July 31, 2005, must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski supra. 

V. Rating in Excess of 50 Percent from August 1, 2005 to October 20, 2008

1. Factual Background

A mental health consultation record, dated August 1, 2005, showed that the Veteran reported having nightmares from Vietnam, and had experienced problems with anger and behavior management.  He reported he was a loner and isolative, and that his sometimes caused problems in his marriage.  It was noted that Desert Storm and the current war had triggered episodes of the Veteran's recalling his Vietnam wartime experiences.  He reported that his sleep was poor, that he felt guilty he survived Vietnam, and that his energy and concentration were low.  No psychomotor agitation or retardation was reported or observed.

Treatment records from the Memphis Vet Center showed that the Veteran continued to attend combat support group therapy from August 2005 through October 2008.  In June 2006, he stayed after a group session to speak with the social worker.  On objective examination, he was found to be neat and friendly, but with a flat affect and depressed mood.  The Veteran reported that it was difficult for him to come to the group where in the past he had always looked forward to it.  He stated he had been having difficulties with his spouse, and that memories of his war trauma had been resurfacing.  The Veteran and the social worker discussed him attending a residential treatment program.  Ten days later, the Veteran called to advise that he would be attending the PTSD residential program in Memphis for six weeks, and it was noted that he sounded excited about being accepted into the program, and felt he was ready to deal with his problems and move on.  

VA treatment records, pertaining to the Veteran's PTSD residential treatment program from June 2006 to August 2006, showed that a GAF score of 45 was assigned throughout the program.  In early August 2006, he attended a group therapy session and was quite active during the session.  Also, his mood was euthymic with congruent effect.  The next day, he attended another group therapy session, and it was noted that he was visibly anxious and tended to mask his anxieties about discharge with humor throughout the session.   

VA treatment records showed that in July 2007, the Veteran was found to be alert and oriented, and to have a grossly normal mood and affect.  Additionally, in July 2007, he had no acute issues with anxiety or PTSD, had a normal mood, no depression or anxiety complaints, and denied suicidal and homicidal ideation.  In September 2007, he was found to have a depressed affect, but denied suicidal or homicidal ideation.  A GAF score of 45 was assigned.  In November 2007, he complained of problems with his wife and with PTSD.  Objective examination revealed his affect and mood were anxious, angry, and depression.  He denied suicidal and homicidal ideation and hallucinations.  There was no evidence of psychoses, thought disorder, or delusions.  His speech was coherent, relevant, logical, and goal directed, but it seemed pressured in terms of rate, rhythm, and tone.  There was no tangentiality or looseness of association, and his memory, insight, and judgment seemed intact.  

In a statement dated in December 2007, the Veteran's sister, S.P., indicated that serving in Vietnam had changed the Veteran's life tremendously and that since he had been in therapy, there had been a change in his behavior as well.  It was noted that the Veteran was constantly rehashing Vietnam days, and that he had become a loner and choose not to go or participate in many public events.  In a statement from another sister, M.T-P, it was noted that since serving in Vietnam, the Veteran was easily agitated, negatively opinionated, less willing to listen, and unwilling to agree to disagree, and was confrontational and defensive.  Finally, in a statement dated in January 2008, the Veteran's sister, A.S.K., reported that the Veteran was a changed man when he returned home from service, and he had some very serious emotional issues and became detached and a loner and developed anger management issues. 

In March 2008, the Veteran testified that he had anxiety and anger, and felt he had to check doors and locks constantly.  He testified he did not sleep well and was a loner, and stayed to himself.  He claimed he had to take an early retirement because he got to the point he could not function well, and he started a lot of Vietnamese people being hire and he had so many flashbacks coming, including with Desert Storm and the Iraqi war.  He testified he went to group therapy every Tuesday and he looked forward to that.  He reported having panic attacks every time something disturbed him, which was basically everyday.  He reported he isolated himself, and that he had one guy from the group whom he talked to.  He testified he was married, but that he and his wife had problems.  He had a daughter, but did not know where she was and she had nothing to do with him.  He also had a son, who he called every now and then.  He did not go to church and did not go shopping.  He belonged to the DAV, but reportedly did not have a whole lot to do with those guys.  He testified he kept his hygiene up, and enjoyed taking a shower.  He testified he took an early retirement in 2002, due to his PTSD, and he got to the point where he could not be around other people.  He testified he had a problem with anger.  He lived in the country with his wife and two dogs, and indicated that his wife wanted to have people come by, but he could not deal with it.  

VA treatment records showed that in March 2008, the Veteran reported he was living in fear, and described anxiety and isolation.  He had a strained relationship with his wife, and was comfortable spending all his time alone.  He reported he benefitted from weekly Vet Center support groups and would continue with this.  He wanted to continue in individual psychotherapy, with relaxation and anxiety management as treatment goals.  On mental status examination, the Veteran was alert and oriented, and his mood was depressed and his affect was congruent.  He had no suicidal or homicidal ideation, and no psychotic symptoms.  The diagnosis was chronic PTSD.  In March 2008, the Veteran had a biofeedback session, which reduced his pain and anxiety levels.  He continued to have biofeedback sessions from June 2008 through September 2008, and reported that these were beneficial to him, and helped manage his PTSD symptoms, including reducing his tension. 

2. Analysis

The Veteran contends that his service-connected PTSD, to include adjustment disorder with depressed mood, has been more disabling than currently rated for the period from August 1, 2005 to October 20, 2008.  He has reported that his PTSD caused him to suffer various symptoms including depression, anxiety, sleep problems, insomnia, nightmares, flashbacks, intrusive thoughts, isolating behaviors, hypervigilance, and anger issues.  With regard to occupational impairment, while he contends his psychiatric disability affected his ability to work, the record reflects he retired from his job as a truck driver in 2002.  Thus, although he has clearly had difficulty with employment, he maintained a period of employment as a truck driver for 30+ years, and, his work difficulties do not appear to be solely a result of his service-connected PTSD, to include adjustment disorder, with depressed mood.

After reviewing the evidence of record, the Board finds that, although there may be or may have been some evidence of some of the criteria required for a rating of 70 percent, and comparable symptoms, the competent medical evidence and his reported symptoms, do not show that from August 1, 2005 to October 20, 2008, the manifestations of his PTSD to include adjustment disorder with depressed mood more closely approximate the criteria necessary for a higher rating.  38 C.F.R. § 4.7. 

The Board will discuss separately each of the criteria required for a 70 percent rating. In that regard, although some of the Veteran's recorded symptoms are not specifically provided for in the Rating Schedule, such as nightmares or flashbacks, the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim.  Mauerhan v. Principi, supra. 

The criteria listed in DC 9411 and the General Formula for Rating Mental Disorders, for a 70 percent rating, include occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.  In this case, the Veteran is not attending school, so that is not a factor for consideration.  With regard to work, the Board notes that, although the Veteran's PTSD has no doubt affected his employment throughout the appeal period, the fact remains that he worked for 30+years as a truck driver and retired in 2002.  Moreover, with regard to social impairment, the Board notes that, while the Veteran has reported he isolates himself, does not have friends, and has a problematic third marriage, the record shows that he has maintained some family relationships with his son and siblings and other veterans. 

With regard to the Veteran's judgment, thinking, and mood, the Board notes that impairment of his mood has been shown at various points in the record, at other times he was euthymic and had a stable mood, and his mood was noted to be improved with medication.  With regard to judgment and thinking, at most, minimal to no impairment of each has been shown by the objective record.  VA treatment records and the VA examination report show that he has had good judgment, and his thought process has been within normal limits. 

With regard to symptoms needed to warrant a 70 percent rating, the Board notes that the criteria for rating mental disorders list a variety of symptoms that would support each rating.  However, the list is not exhaustive.  The Board notes that VA treatment records show that with the exception of once or twice, the Veteran has consistently denied having suicidal ideation.  There has been no report by the Veteran or finding of any obsessional rituals which interfere with routine activities.  While he has reported being on alert and hypervigilant, he has not described any obsessional rituals that interfere with his activities.  On examination, the Veteran's speech has consistently been found to be normal.  While he has reported having anxiety, those symptoms have never been show to rise to the level of affecting his ability to function independently, appropriately, and effectively.  In VA treatment records and on VA examination reports the Veteran has consistently been found to be alert, oriented, and adequately groomed.  At no time has there been any finding of, or even approximating, spatial disorientation or neglect of personal appearance and hygiene. 

While the Veteran has, by his own report, had difficulty in adapting to stressful circumstances at work, he nonetheless was able to work 30+years as a truck driver.  In addition, an inability to establish and maintain effective relationships has not been shown.  To the contrary, the Veteran has maintained relations with some family members and other veterans.  In summary, the findings in such areas as work, family relations, judgment, thinking, and mood do not show that the Veteran has deficiencies in most areas, so as to support the assignment of a 70 percent rating, for the period from August 1, 2005 to October 20, 2008.  While he may have had some problems in some of those areas, he has for the most part not had problems (or had minimal problems) in these areas.  Rather, it appears that his PTSD, to include adjustment disorder with depressed mood, manifestations more nearly approximate the criteria for a 50 percent rating.  38 C.F.R. § 4.7. 

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his psychiatric condition, and acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned rating reflects.  Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for those purposes.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the competent medical evidence offering detailed and specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the psychiatric symptoms on appeal; further, the medical evidence also largely contemplates the Veteran's descriptions of symptoms. 

Although the GAF score assigned for this period has been 45, which evidences serious symptoms and serious to major impairment, for reasons set forth herein, the Board finds that the Veteran was never shown to have PTSD symptomatology of such severity so as to warrant a 70 percent rating for the period from August 1, 2005 to October 20, 2008.  Further, when his various GAF scores are considered together with other findings in the medical evidence, the Board still finds that the criteria for a rating in excess of 50 percent have not been met.  With consideration of the Veteran's complaints, symptoms, and clinical findings of record, the Board concludes that his PTSD manifestations do not approximate the criteria for a 70 percent rating.  38 C.F.R. § 4.130, DC 9411. 

Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's PTSD, to include adjustment disorder with depressed mood, meets, or more nearly approximates, the criteria for a 70 percent rating at any point.  38 C.F.R. § 4.130, DC 9411.  Thus, he is not entitled to a rating in excess of 50 percent for his service-connected PTSD, to include adjustment disorder with depressed mood, for the pertinent period, and there is no reasonable doubt to resolve in his favor.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. 

VI. Extraschedular Consideration

The Board also finds that the Veteran's PTSD, to include adjustment disorder with depressed mood, does not warrant referral for extra-schedular consideration at any point during the appeal period, prior to October 21, 2008.  

In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

In the present case, the Board finds that the Veteran's disability picture due to his PTSD, to include adjustment disorder with depressed mood, is adequately contemplated by the rating schedule, especially since the rating criteria for PTSD (DC 9411) and specifically take into account social and occupational functioning in assessing the severity of the PTSD, and provides for a greater evaluation for more severe impairment.  The record reflects that the Veteran previously worked as a truck driver, and has reported he retired in 2002.  While he has claimed that his service-connected psychiatric disorder affects his ability to work, herein, as explained above, the rating criteria for his service-connected PTSD reasonably describes his disability level and symptomatology, throughout the various stages of the appeal.  Thus, the first prong of the Thun analysis has not been satisfied in this case, the criteria for referral for the assignment of an extraschedular disability rating are not met, and the Board declines to remand this matter for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, supra. 


ORDER

Effective prior to April 20, 2001, a 30 percent rating for PTSD, to include adjustment disorder with depressed mood, is granted, subject to the law and regulations governing the payment of monetary benefits.

Effective from April 20, 2001 to July 31, 2005, a rating in excess of 30 percent for PTSD, to include adjustment disorder with depressed mood, is denied.

Effective from August 1, 2005 to October 20, 2008, a rating in excess of 50 percent for PTSD, to include adjustment disorder with depressed mood, is denied.



______________________________________________
FRANK J. FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs