Citation Nr: 1331452	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  12-06 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a higher initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel





INTRODUCTION

The veteran had Recognized Guerilla Service from October 1942 to August 1945. He also had service in the Regular Philippine Army from August 1945 to November 1945. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which granted service connection for PTSD, assigning a 50 percent rating for the disability. This appeal arises from the Veteran's disagreement with the initial rating assigned. The Veteran did not request a hearing before the Board. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

For the entire initial rating period under appeal, the Veteran's PTSD has not been manifested by symptomatology more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships.




CONCLUSION OF LAW

For the entire initial rating period under appeal, the criteria have not been met for a rating in excess of 50 percent for PTSD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the veteran prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA satisfied its duty to notify the Veteran by issuing a notice letter in June 2008. In this notice letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; and the information and evidence the Veteran was expected to provide.

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

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, and reports of respective VA psychiatric examinations provided in May 2009 and November 2011. After reviews of all evidence and thorough mental examinations, the respective VA examiners provided findings regarding the severity of the Veteran's PTSD acceptable for rating purposes. Therefore, the Board finds that the May 2009 and November 2011 VA psychiatric examination reports have probative value in this matter. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655 (2012), all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).

The Merits of the Case

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection (i.e., a higher initial rating claim), separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 


PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted where the evidence shows occupational and social impairment with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term 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 evaluation is warranted where the evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is warranted where the evidence shows total occupational and social impairment, with deficiencies such 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; and memory loss for names of close relatives, own occupation, or own name. Id.



In adjudicating a claim for a higher disability rating, the VA adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as mere examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms "like or similar to" the Veteran's PTSD symptoms in determining the appropriate schedular rating assignment, and, although noting which criteria have not been met, has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 
16 Vet. App. 436 (2002).

The Global Assessment of Functioning (GAF) score is a scaled rating reflecting the psychological, social and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). See Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF of 71 to 80 is defined as a situation where "if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork)." A GAF of 61 to 70 is defined as "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A GAF of 51 to 60 is defined as "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." A GAF of 41 to 50 is defined as "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work). A GAF of 31 to 40 is defined as "some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). DSM-IV, at 32; Richard v. Brown, 9 Vet. App. 266, 267 (1996).

The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of a Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board has considered all evidence of record as it bears on the question of a higher initial rating.  See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case").  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal.


Analysis

The Veteran filed an application to reopen service connection for PTSD in June 2008. For the entire rating period, the disability has been rated as being 50 percent disabling under Diagnostic Code 9411, using criteria found at the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Veteran essentially claims that, during the entire rating period, his PTSD symptomatology more nearly approximated that required for a higher rating under the rating criteria.

The Board finds that the Veteran's PTSD symptomatology did not more nearly approximate that required for a next higher 70 percent rating under Diagnostic Code 9411. Specifically, for the entire rating period, PTSD was not manifested by symptoms more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships.

Briefly reviewing the evidence of record, in a June 2004 VA treatment record, a VA examiner noted that the Veteran was appropriately groomed and cooperative. The VA examiner stated that the Veteran's speech was spontaneous, but decreased in volume. She reported that the Veteran's thoughts were linear, although he had difficulty with his short-term memory. She stated that there was no evidence of suicidal or homicidal ideations, auditory or visual hallucinations, or delusional thinking. She noted that the Veteran was depressed and that his affect was constricted, but appropriate to the content of his discussion. She stated that the Veteran was alert and fully oriented. She indicated that the Veteran's insight and judgment were fair. The VA examiner diagnosed (Axis I) PTSD, (Axis IV) problems related to the social environment, and (Axis V) GAF score of 40.

In a July 2004 VA treatment record, the Veteran reported experiencing significant symptomatology associated with his in-service experiences, including nightmares, startle reflex, avoidant behavior, irritability with poor impulse control, and intrusive memories. The VA examiner noted that the Veteran was alert and fully oriented. The VA examiner indicated that the Veteran was somewhat depressed and anxious, and that his affect was appropriate to his mood (occasionally tearful). The VA examiner wrote that the Veteran did not display psychotic symptoms, denied suicidal and homicidal ideation, and had fair insight and judgment. The VA examiner diagnosed PTSD with depression.

In an August 2004 VA treatment record, the Veteran reported a recent incident during which he shouted at another person after becoming angry while performing his duties as the financial officer of his veterans group. The VA examiner noted that the Veteran's mood, irritability, and other symptoms remained unchanged since the July 2004 session. The VA examiner diagnosed PTSD with depression. Subsequently, in a September 2004 VA treatment record, the Veteran reported that he had been feeling less irritable as a result of his medication regimen. 

In a June 2007 letter, a VA examiner reported having interviewed the Veteran in a private capacity in November 2005. The VA examiner stated that the Veteran reported experiencing intrusive thoughts, nightmares, flashbacks, physical reactions to reminders, avoidance of thinking or talking about trauma, problems remembering important aspects of trauma, emotional numbness, sleep and concentration problems, and guardedness related to experiences during service. The VA examiner reported that the Veteran indicated experiencing dissatisfaction with life, boredom, dysphoria, foreboding, feelings of helplessness and worthlessness, memory problems, and a lack of energy. The VA examiner indicated that the Veteran was diagnosed with PTSD and depression.

In an April 2008 lay statement, the Veteran indicated that he had experienced nightmares and depression since service. The Veteran reported that, due to his mental disorders, he had "not been able to live a full and productive life." 

In a May 2009 VA psychiatric examination report, the Veteran stated that he was married, active in his community, had friends, and liked to work with his computer in his leisure time. The Veteran indicated that he had been married for 42 years, and had two children and five grandchildren who lived in the Philippines. The Veteran reported keeping busy by working with the Filipino War Veterans Foundation. The Veteran stated that he worked in agriculture, raising pigs and flowers, prior to retiring due to his age. 

Upon mental examination, the May 2009 VA examiner noted that the Veteran was clean, neatly groomed, and appropriately dressed in casual clothing. The VA examiner reported that the Veteran's psychomotor activity and speech were unremarkable and that the Veteran's attitude toward the examiner was cooperative and friendly, and that he did not behave inappropriately. The Veteran's affect was normal and his mood was happy. The VA examiner reported that the Veteran's attention and orientation were normal, and his thought process and thought content were unremarkable. The VA examiner noted no evidence of delusional thinking or hallucinations. The VA examiner indicated that the Veteran understood the outcome of his behavior and understood that he had a problem. The VA examiner noted that the Veteran had difficulty falling asleep and maintaining sleep, and that he slept from five to six hours per night. The VA examiner indicated that the Veteran had nightmares about four to five times per month. The VA examiner reported that the Veteran did not have panic attacks, obsessive or ritualistic behavior, homicidal thoughts, or suicidal thoughts. The VA examiner indicated that the Veteran interpreted proverbs appropriately. The VA examiner reported that the Veteran's impulse control was good and his memory was normal. The VA examiner stated that the Veteran did not have any problems with his activities of daily living.

The VA examiner noted that the Veteran experienced recurrent and intrusive distressing recollections of traumatic in-service events, including images, thoughts, or perceptions and recurring distressing dreams of the stressor events. The VA examiner indicated that the Veteran reported that he would sometimes act or feel as if the stressor events were recurring. The VA examiner also noted that the Veteran would experience intense psychological distress or physiological reactivity to exposure to internal or external cues that symbolized or resembled aspects of the traumatic events. 

The VA examiner indicated that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with his in-service traumas. The VA examiner stated that the Veteran also took efforts to avoid activities, places, or people that aroused recollections of the trauma. The VA examiner noted that the Veteran experienced remarkably diminished interest in participating in significant activities; that the Veteran had reported feelings of detachment or estrangement from others. The VA examiner stated that the Veteran had a restricted range of affect (e.g., unable to have loving feelings). The Veteran indicated that he experienced difficulty 
falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The Veteran stated that, after service, he was more angry and irritable, and had difficulty getting along with others. The Veteran stated that he experienced these symptoms "constantly," but that he experienced them "less" since beginning treatment. 

The VA examiner diagnosed (Axis I) PTSD, (Axis III) hypertension, enlarged prostate, (Axis IV) "slight to moderate," and (Axis V) GAF score of 65, indicating "mild to moderate impairment occupationally and interpersonally." The VA examiner stated that the Veteran was becoming more socially isolated and less able to enjoy himself. The VA examiner also stated that the Veteran was irritable and had difficulty getting along with others. The VA examiner indicated that, when the Veteran was still working, he was self-employed as a farmer. The VA examiner noted that this position, working while isolated from other people, appealed to the Veteran due to his mistrust of other people. The VA examiner stated that the Veteran would experience 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 symptomatology such as a tendency to become irritated easily and difficulty getting along with others. 

In a November 2011 VA psychiatric examination report, the Veteran stated that his wife was disabled due to a 1995 stroke incident. The Veteran indicated that the county appointed a "provider" for his wife who would clean the house a few hours each week and take her to the doctor. The Veteran stated that he did not have a caretaker and was "doing his best to take care of myself." The Veteran reported having two children and five grandchildren living in the Philippines. The Veteran stated that the last time he visited the Philippines was in March 2011. The Veteran indicated that he sometimes served as a volunteer worker with his local veterans group. The Veteran indicated that he became a United States citizen in 1993 and brought his wife to live with him in 2000. The Veteran stated that he spent a year in college, but dropped out due to costs, and problems with concentration and recollection. He indicated that he worked as a landscaper, supplying packs of plants for government offices in the Philippines. The Veteran reported that he stopped working at age 65 because he could no longer perform heavy labor and he was starting to forget things due to his PTSD. Specifically, the Veteran indicated that because he forgot "one step," he "misstepped and injured his back right before he retired." 

Upon examination, the VA examiner indicated that the Veteran experienced recurrent and distressing recollections of an in-service event, including images, thoughts, or perceptions of the event. The VA examiner noted that the Veteran experienced recurrent distressing dreams of the event, and events during which the Veteran acted or felt as if the traumatic event were recurring. The VA examiner stated that those events would include a sense of reliving the experiences, illusions, hallucinations, and dissociative flashback episodes, including those that would occur on awakening or while intoxicated. The VA examiner also noted that the Veteran would experience intense psychological distress or physiological reactivity to exposure to internal or external cues that symbolized or resembled aspects of the traumatic events. The VA examiner also noted that the Veteran would experience intense psychological distress or physiological reactivity to exposure to internal or external cues that symbolized or resembled aspects of the traumatic events.

The VA examiner indicated that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with his in-service traumas. The VA examiner stated that the Veteran also took efforts to avoid activities, places, or people that aroused recollections of the trauma. The VA examiner indicated that the Veteran experienced an inability to recall important aspects of the traumatic event. The VA examiner noted that the Veteran experienced remarkably diminished interest in participating in significant activities and that the Veteran had reported feelings of detachment or estrangement from others. 

The VA examiner indicated that the Veteran experienced difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. The VA examiner stated that the noted symptoms caused clinically significant distress or impairment in social, occupational, or other areas of functioning. When describing the Veteran's symptoms, the VA examiner stated that the Veteran experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short-term and long-term memory, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including in a work or worklike setting. 

The VA examiner diagnosed (Axis I) chronic PTSD, (Axis III) hypertension, enlarged prostate, and (Axis V) GAF score of 50, indicating "serious PTSD symptoms with serious impairment in social and occupational functions." The VA examiner stated that the Veteran was becoming more socially isolated and less able to enjoy himself. The VA examiner stated that the Veteran experienced "occupational and social impairment with reduced reliability and productivity."

The preponderance of the evidence is against a finding that PTSD symptomatology met or nearly approximated that required for a next higher 70 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. Specifically, for the entire rating period, PTSD was not manifested by symptoms more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and, effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships.

There is no evidence in this period indicating suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; or neglect of personal appearance and hygiene, all criteria for the next higher 70 percent rating under Diagnostic Code 9411. See id.  

Impaired impulse control (such as unprovoked irritability with periods of violence) is listed in the criteria for a higher 70 percent rating. While the record for the entire initial rating period indicates that the Veteran has experienced irritability, to include a single incident during which the Veteran shouted at another individual in anger, verbal aggression is not equivalent to violence. Such incidents are not indicative of the unprovoked irritability contemplated by the criteria listed for a 70 percent rating at Diagnostic Code 9411. See id. 

Although the Veteran indicated that he had difficulty getting along with others due to irritability, he also indicated that he was able to interact with his family and assist others through his participation in the local veterans group. Such interactions are not indicative of the inability to establish and maintain effective relationships listed in the criteria for a 70 percent rating. The Veteran's participation in a local veterans group also is not indicative of difficulty in adapting to stressful circumstances, such as a worklike setting, as listed in the criteria for a 70 percent rating. See id.

Near-continuous panic or depression affecting the ability to function independently, appropriately and, effectively is listed in the criteria for a higher 70 percent rating. See id. The treatment records indicated that the Veteran experienced depressive symptoms during the rating period under appeal. However, the record does not indicate that the Veteran's depression affected the Veteran's the ability to function independently, appropriately, and effectively. In fact, during the rating period under appeal, the evidence, both lay and medical, indicates that the Veteran was able to act independently of others and was responding well to treatment. 

In the November 2011 VA psychiatric examination report, the VA examiner wrote that the Veteran would experience events during which he acted or felt as if a traumatic in-service event were recurring. The VA examiner stated that those events would include a sense of reliving the experiences, illusions, hallucinations, and dissociative flashback episodes, including those that would occur on awakening or while intoxicated. 




Persistent delusions or hallucinations are listed among the criteria for a 100 percent evaluation under Diagnostic Code 9411. See id. However, the November 2011 VA examiner did not indicate that the Veteran's hallucinations were "persistent" and the record does not indicate otherwise. The record contains no evidence that the Veteran's PTSD symptomatology more nearly approximated that required for a 100 percent rating. Specifically, the Veteran did not experience "total occupational and social impairment," manifested by symptomatology such as "gross impairment in thought processes or communication; 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; and memory loss for names of close relatives, own occupation, or own name." Id.

The Board notes a wide variance in the GAF scores of record. In the June 2004 VA treatment record, a VA examiner assigned a GAF score of 40. Subsequently, the May 2009 VA examiner assigned a GAF score of 65 and the November 2011 VA examiner assigned a GAF score of 50. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Yet, the Board notes that the June 2004 VA treatment record, indicating a GAF score of 40, was written more than four years prior to the effective date for the award of service connection for PTSD. Therefore, as that record was not written during the actual initial rating period under appeal, the GAF score noted therein is of much less probative value than those noted in the May 2009 and November 2011 VA psychiatric examination reports. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that it was the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same). The May 2009 VA examiner assigned a score of 65, indicating "mild to moderate impairment occupationally and interpersonally." 

The score is not indicative of symptoms more nearly approximating the occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, required for a 70 percent rating. By contrast, the November 2011 VA examiner noted a GAF score of 50, indicating "serious PTSD symptoms with serious impairment in social and occupational functions." A GAF score indicating "severe" symptomatology could be viewed as an indicator of symptomatology more severe than that contemplated by the currently assigned 50 percent rating. Yet, the GAF score must be considered in light of the actual symptoms of a Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a). As noted above, the Veteran's delineated symptoms for the entire rating period do not more nearly approximate that required for a higher rating under Diagnostic Code 9411. In fact, in the November 2011 VA psychiatric examination report, the VA examiner indicated that the Veteran's PTSD symptomatology more nearly approximated "occupational and social impairment with reduced reliability and productivity," the specific criteria listed for the currently assigned 50 percent rating under Diagnostic Code 9411. 

For the initial rating period under appeal, the disability picture for the Veteran's PTSD does not more nearly approximate a next higher 70 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. 
§ 5107(b); Gilbert, at 54-56. 

Extraschedular Rating

The Board has considered whether referral for consideration of extraschedular ratings is warranted for the Veteran's PTSD. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).

Under the law, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has 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 for completion of the third step, specifically a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. 

The impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.130, Diagnostic Code 9411), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Code 9411 specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for entire increased rating period under appeal, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity, due to such symptoms as impairment of short-term and long-term memory and disturbances of motivation and mood. Id.  

As the schedular evaluations contemplate the symptomatology of the Veteran's PTSD during the entire initial rating period, the Board need not determine whether there are exceptional disability pictures that exhibit other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's PTSD, the Board is not required to remand this issue to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

A higher initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. 



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs