Citation Nr: 1333815 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 05-12 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bipolar disorder, sleep disturbance, anxiety, depression, and acute distress and dysthymia, including as secondary to service-connected posttraumatic stress disorder (PTSD) (hereinafter "acquired psychiatric disorders, in addition to PTSD"). 2. Entitlement to an increased rating (or evaluation) in excess of 30 percent for PTSD. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 1969 to October 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which increased the evaluation for PTSD to 30 percent disabling and denied service connection, in part, for sleep disturbance, anxiety, depression, dysthymia, and acute distress. In an April 2005 Substantive Appeal (VA Form 9), the Veteran requested a Board hearing to be held at the RO (Travel Board hearing). In a written statement received February 2008, the Veteran subsequently withdrew the hearing request. The hearing request is withdrawn. 38 C.F.R. § 20.704 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim for service connection for a mental disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In light of this decision the Board finds that the Veteran's most recent claim for service connection for sleep disturbance, anxiety, depression, dysthymia, and acute distress may be considered to encompass any diagnosed acquired psychiatric disorder. The competent evidence also indicates that, in addition to PTSD, the Veteran has been diagnosed as having bipolar disorder. The claim on appeal has therefore been recharacterized to conform to Clemons. As will be addressed below, the competent evidence shows that no definite distinctions were drawn by the VA examiners between the symptomatology attributable to his service-connected PTSD and the symptomatology attributable to his other acquired psychiatric disabilities. Because the competent evidence has shown that the Veteran's PTSD is related to active service, and because no distinctions were made by his VA treating physicians between his PTSD and his other acquired psychiatric disabilities, the Board finds that all of the Veteran's psychiatric symptomatology is attributable to PTSD. The case was previously before the Board in May 2012, wherein it was remanded for additional development. The case was returned to the Board for appellate consideration. The case was forwarded to the Veterans Health Administration (VHA) for an advisory medical opinion was completed in June 2013 and has been returned to the Board for appellate consideration. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In addition to his service-connected PTSD, the Veteran has also been diagnosed with bipolar disorder. 2. The symptomatology of the Veteran's acquired psychiatric disorders, in addition to PTSD, cannot clearly be distinguished from that of his service-connected PTSD. 3. The Veteran's PTSD and associated psychiatric disorders have been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as depression and dysthymia; impairment of short and long-term memory; poor concentration; circumlocutory speech; nightmares; intrusive thoughts; anxiety; irritability and outbursts of anger; hypervigilance; chronic sleep impairment; and, impaired judgment. 4. The Veteran's PTSD and acquired psychiatric disorders have not more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to acquired psychiatric disorder signs and symptoms for any period. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, service connected is warranted for an acquired psychiatric disorder, in addition to PTSD, to include bipolar disorder, as part of the Veteran's already service-connected PTSD. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an increased rating of 50 percent, but no higher, for PTSD have been met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a claim for an increased rating, the VCAA requires only generic notice as to 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). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). If, however, for whatever reason the AOJ does not, or provides the notice in a timely manner but it is inadequate or incomplete, the AOJ can effectively "cure" this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC) such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder in addition to PTSD, as the Board is granting the full benefit sought on appeal, this claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Regarding the Veteran's claim for an increased rating in excess of 30 percent for PTSD, the RO provided notice to the Veteran in June 2005, after the initial adjudication of the claim in November 2004. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The RO provided notice to the Veteran in March 2006 addressing the rating criteria and effective date provisions that are pertinent to the Veteran's claim. The RO rectified ("cured") this timing defect in the provision of the notice by since readjudicating the claim in December 2005 and July 2006 SSOCs. Mayfield v. Nicholson, 499 F.3d at 1317. VA satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, Veterans Health Administration advisory medical opinion, Social Security Administration (SSA) disability records, private treatment records, articles submitted by the Veteran regarding PTSD, and lay statements. Second, VA satisfied its duty obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in June 2004, October 2005, May 2009, November 2009, and July 2012. A January 2010 addendum to the November 2009 VA examination report was obtained in which the examiner reviewed the claims folder and reported no change to the May 2009 VA examination opinion. A June 2010 addendum to the May 2009 VA examination was also obtained. The June 2010 addendum opinion focused on questions relating to the Veteran's claim for service connection for an acquired psychiatric disorder. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim for an increased rating in excess of 30 percent for PTSD. The VA examiners personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic code. Additionally, neither the Veteran nor his representative has questioned the adequacy of any examination. The Veteran was offered the opportunity to testify at a hearing before the Board, but withdrew his hearing request in a written statement received February 2008. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Entitlement to Service Connection for Acquired Psychiatric Disorders Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2013). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Additionally, the conditions at issue are not psychosis and not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, because the Veteran has not been diagnosed with a psychosis, the presumptive provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) do not apply to these non-chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.384 (2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has contended that his current acquired psychiatric disorders, in addition to PTSD, are related to active service, or are secondary to his service-connected PTSD. In addition to the diagnosis of PTSD, the competent evidence shows that the Veteran has been diagnosed with bipolar disorder. Private treatment records dated from February 1998 through November 1999 reflect a diagnosis of bipolar disorder and treatment for the disorder. The May 2009 VA examination report also notes a current diagnosis of bipolar affective disorder, most recent episode depressed, mild. After a review of the all the evidence, the Board finds that the evidence is in equipoise as to whether the Veteran has a current diagnosis of bipolar disorder. While the record contains these above diagnoses, at the July 2012 VA examination, the VA examiner determined that the Veteran was not describing fully symptoms for bipolar and a diagnosis of bipolar disorder was not provided. The VA examiner noted that the Veteran had previously been diagnosed with bipolar disorder, but opined that there did not appear to have been strong evidence to support such a diagnosis at that time. Additionally, in June 2013, the Board obtained a VHA advisory medical opinion. The VHA examiner could not state with certainty if the bipolar disorder, initially diagnosed in 1998 and 1999, was an accurate diagnosis, opining that it is less likely even though it is possible to have no recurrent episodes. However, when affording the Veteran the benefit of the doubt, the Board finds that the Veteran has a current diagnosis of bipolar disorder. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board also notes that the Veteran has contended that all of his psychiatric symptomatology/impairment is related to his military service and/or secondary to his service-connected PTSD. Moreover, under the VA rating criteria all psychiatric disabilities other than eating disorders are evaluated under the general rating formula detailed at 38 C.F.R. § 4.130. The Veteran is not seeking service connection for an eating disorder. The Veteran, in his January 2005 Notice of Disagreement, has claimed that each of his acquired psychiatric disorders/symptoms should be assigned a separate compensable rating. In support of his claim that all his acquired psychiatric symptoms should be assigned separate ratings, the Veteran submitted articles entitled "Trauma, PTSD, and the Primary Care Provider: A National Center Fact Sheet," "A brief history of the PTSD diagnosis," "The Dangerous Link Between PTSD and Substance Abuse," and "Anger Management and PTSD: Engaging Substance Abuse Patients in Long-Term Treatment." The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2013). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. Therefore, the practical effect of this appellate claim is whether all of the Veteran's current psychiatric impairment is to be recognized as originating from his service-connected disability. VA adjudicators are precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). At the June 2004, October 2005, and May 2009 VA examinations, the VA examiners did not differentiate between the symptoms associated with the Veteran's diagnosed disorders to include substance abuse, possible antisocial personality disorder, bipolar disorder, and PTSD. At the July 2012 VA examination, the examiner indicated that it was possible to differentiate what symptoms are attributable to each of the Veteran's diagnoses, but then did not differentiate between the symptoms other than to note that the Veteran denied drinking more than one alcoholic drink per two weeks. The June 2013 VHA advisory medical opinion indicates that mood and substance disorders may be comorbid with PTSD even though bipolar disorder is considered a separate diagnosis. The VHA examiner opined that, if bipolar disorder was present with PTSD during the period of time 1998 through 1999, the two diagnoses could potentially temporarily exacerbate symptoms of both disorders. In a June 2010 addendum opinion to the May 2009 VA examination, the VA examiner noted that, while there can be an overlap of some symptoms of PTSD and bipolar disorder (e.g., anger and irritability), the Veteran had periods of time when his bipolar disorder symptoms (mood disorder symptoms including depression, dysthymia, impulsivity, and feeling that he did not need as much sleep as others) and alcohol dependence were more prevalent than specific PTSD symptoms, but the VA examiner did not list specific PTSD symptoms. While the VA examiner did provide some differentiation between symptoms attributable to bipolar disorder and those attributable to PTSD, the examiner also stated that there can be some overlap of symptoms. Since there is no definitive opinion on whether the symptomatology of the Veteran's current acquired psychiatric disorders are attributable to the service-connected PTSD or a result of the Veteran's active service, with resolution of reasonable doubt in favor of the Veteran, the Board finds that the Veteran's bipolar disorder cannot be satisfactorily disassociated from the Veteran's PTSD, or any other psychiatric disorder however diagnosed. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Mittleider, 11 Vet. App. at 182. The Board notes that the Veteran has also claimed service connection for sleep disturbance, anxiety, depression, acute distress and dysthymia. However, the Board finds that these symptoms are already encompassed by the Veteran's current service-connected PTSD and, thus, have already been taken into account in assigning the Veteran's disability rating. The June 2004 VA examination report specifically notes mild depression and dysthymia. The October 2005 VA examination report notes that the Veteran reported sleep problems, including nightmares and anhedonia, anxiety, and depression. The May 2009 VA examination report notes that the Veteran reported nightmares, decreased need for sleep, and depression. The May 2009 VA examiner noted the Veteran's affect was mildly dysthymic at times. The July 2012 VA examination report notes that the Veteran had anxiety and chronic sleep impairment. As these symptoms have specifically been taken into account in assigning the current rating for the Veteran's service-connected PTSD, they are not separately service connectable, as to separately service connection and separately rate the same symptoms under a different diagnosis would constitute pyramiding. 38 C.F.R. § 4.14. In view of the foregoing, the Board finds that the symptomatology of the Veteran's acquired psychiatric disorder, particularly bipolar disorder, cannot clearly be distinguished from that of his service-connected PTSD. Therefore, service connection is warranted for an acquired psychiatric disorder of bipolar disorder, in addition to PTSD. As detailed above however, the practical effect of this decision is that all of the Veteran's psychiatric impairment is to be attributable to the already service-connected PTSD. Increased Rating for PTSD in Excess of 30 Percent Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether a staged rating is warranted; however, as the Board will discuss in more detail below, the Veteran's PTSD has not increased in severity over the course of the appeal, such that he exhibits symptoms or occupational and social impairment that would warrant different ratings. The Veteran is in receipt of a 30 percent disability rating for PTSD under Diagnostic Code (DC) 9411. 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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 inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. As noted above, in applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2013); Mittleider at 182 (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). The schedule for rating mental disorders is divided into multiple diagnostic codes to include Diagnostic Code 9411 for PTSD. The mental disorders, however, are all contemplated under the general rating formula for mental disorders. Thus, the pathology associated with the acquired psychiatric disorders is also contemplated in the analysis of the disability evaluation assigned for the Veteran's service-connected PTSD. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, one factor for consideration is the Global Assessment Functioning (GAF) score, which is a scale ranging from 1 to 100 and reflecting "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, while the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). After a review of all the evidence, lay and medical, the Board finds that, for the entire appeal period, the Veteran's PTSD and associated psychiatric disorders have been characterized by occupational and social impairment with reduced reliability and productivity consistent with the criteria for a 50 percent disability rating, but no higher, under DC 9411. 38 C.F.R. § 4.130. The Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as depression and dysthymia; impairment of short and long-term memory; poor concentration; circumlocutory speech; nightmares; intrusive thoughts; anxiety; irritability and outbursts of anger; hypervigilance; chronic sleep impairment; and, impaired judgment. In June 2004, the Veteran underwent a VA examination. The VA examination report indicates that the Veteran did not know the date, did not know any past presidents, and was unable to do the serial seven calculations. The examiner noted that he did not see anxiety manifestations in the Veteran, but, giving the Veteran the benefit of the doubt, did see some mild depression and dysthymia. The June 2004 VA examiner noted that depression and dysthymia could be part of the Veteran's PTSD. The examiner noted that the Veteran's PTSD was very mild with superficial and not deep manifestations. The examiner diagnosed the Veteran with borderline intelligence, mild PTSD, chronic, and chronic long term alcohol use. The examiner assigned a GAF score of 50. The examiner opined that the Veteran's chronic alcohol involvement was much more interfering with the Veteran's abilities than PTSD, but did not separate out the symptoms attributable to the Veteran's PTSD and alcohol use In October 2005, the Veteran underwent a VA examination. The examiner noted that the Veteran jumped around a good deal in his speech and was difficult to follow at times. The Veteran reported experiencing sleep and appetite problems, that he has nightly nightmares, intrusive thoughts and anger control problems. The Veteran denied flashbacks or auditory or visual hallucinations, but admitted to paranoia and/or hypervigilance. The Veteran reported that his PTSD symptoms have interfered with his marital life, including choking his first wife in his sleep. The Veteran endorsed anxiety, depression, insomnia, anhedonia, and nightmares. The Veteran indicated he has four to five "temper tantrums" on a regular basis towards his wife and children. The October 2005 VA examiner noted that the Veteran had a speech articulation disorder, partially because of his edentulous state. The examiner noted that the Veteran presented as very hyperactive, anxious, and exhibited a degree of spasticity in his movements. The VA examiner noted that the Veteran was well oriented to time, place, person, and situation. The VA examiner noted that the Veteran's concentration was poor and his long and short-term memory appeared spotty. The examiner noted that the Veteran's problem behaviors include credibility problems as well as intense anger. The October 2005 VA examiner diagnosed the Veteran, in part, with PTSD, by history, and assigned a GAF score of 50. The examiner opined that the Veteran's severe substance abuse, possible antisocial personality disorder, and PTSD all appear to contribute equally to his condition. However, the VA examiner did not separate the symptoms of the Veteran's service-connected PTSD from his nonservice-connected disabilities. In May 2009, the Veteran underwent another VA examination. The Veteran reported difficulties with memory. The VA examiner noted that, while the Veteran could do basic subtraction, he could not recall his correct age and noted that the Veteran had his birthday a little less than a month prior. The Veteran reported that he currently lives with his wife, a daughter, and several grandchildren and his hobbies include playing with his grandchildren. The May 2009 VA examination report notes no plan, intent or history of suicidality or homicidality, but goes on the note that the Veteran reported a warrant for his arrest in 1999 for setting up his cousin-in-law to be killed. The Veteran reported he had past dreams and thoughts during the day of shooting his brother and his wife. The Veteran reported he had thoughts of killing other people one to two months ago. The Veteran denied hallucinations and delusions, but reported that, prior to his legs being amputated, he "had electricity running through them" and he used to "shock" his wife all the time. The Veteran reported nightmares three to four nights per month as well as a decreased need for sleep. The Veteran reported poor appetite or overeating, insomnia or hypersomnia, and low self-esteem while depressed. The May 2009 VA examiner noted that the Veteran's speech was slow, mumbled with some slurring. The examiner noted the Veteran's affect was mildly dysthymic at times, but appropriate for the content of the discussion. The examiner noted the Veteran was oriented to person, place and situation, but, when asked about time, the Veteran stated he did not know. The VA examiner noted that the Veteran's judgment for hypothetical situations was impaired. The examiner noted the Veteran's remote and recent memory and immediate retention were intact. However, the Veteran's short-term recall was impaired. The May 2009 VA examiner noted that the Veteran's diagnosed PTSD and bipolar disorder were both mild. The examiner did not differentiate between the symptoms associated with each disorder. The examiner assessed the Veteran with a current GAF score of 55 and a score of 50 for the past year. In November 2009, the Veteran underwent a VA neuropsychological examination. The Veteran could not provide information regarding why or when both of his legs were amputated. The examination report notes that the Veteran was oriented to person, place, and purpose of appointment, but not time or recent events. The examiner noted that the Veteran had problems comprehending basic conversational speech or task instruction. The VA examiner noted that the Veteran's speech was largely void in content, and mildly slurred, but within normal limits for prosody, rate, and volume. According to the VA examination report, the Veteran's remote and recent memory appeared limited with confabulation suspected. The Veteran denied current suicidal or homicidal ideation or intent, but admitted to this being a problem in the past. The Veteran denied visual or auditory hallucinations, but the VA examiner noted that the Veteran appeared to be reacting to some sort of internal stimuli as the Veteran would suddenly look to the side, chuckle and mumble under his breath as if talking to someone. However, there was no formal evidence of delusions. In July 2012, pursuant to May 2012 Board remand instructions, the Veteran underwent another VA examination. The Veteran reported that he continued to live with his wife and spends the majority of his free time watching TV, sitting or relaxing outside, and with friends and family. The Veteran reported difficulty falling or staying asleep, irritability or outbursts of anger, and hypervigilance. The VA examination report notes that the following symptoms apply to the Veteran's PTSD: anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The Veteran denied a history of depression, but reported that he used to have flashbacks one to two times per month which would last for one hour and in which he thought someone was trying to kill him, and he was abusive to his family. The Veteran denied excessive worry or a history of panic attacks as well as hallucinations or delusions. The VA examiner diagnosed the Veteran, in part, with PTSD and alcohol dependence in remission and he was assigned a GAF score of 58. The VA examiner noted that the Veteran had mild PTSD. The examiner noted that, while part of the dysfunction experienced by the Veteran after service was due to PTSD, the primary diagnosis would have been alcohol dependence. The examiner indicated that it was possible to differentiate what symptoms are attributable to each diagnosis, but then only noted that the Veteran denied drinking more than one alcoholic drink per two weeks. The VA examiner did not differentiate between the symptoms associated with each psychiatric disorder. Based on the foregoing, the Board finds that, for the entire rating period, the Veteran's acquired psychiatric disorder, to include PTSD, has been characterized by symptoms of depression and dysthymia; impairment of short and long-term memory; poor concentration; circumlocutory speech; nightmares; intrusive thoughts; anxiety; irritability and outbursts of anger; hypervigilance; chronic sleep impairment; and, impaired judgment, many symptoms of which are associated with the 50 percent rating. The Board finds that throughout the rating period the Veteran's acquired psychiatric disorder symptoms result in occupational and social impairment with reduced reliability and productivity, which more nearly approximates the criteria for a 50 percent disability rating under DC 9411. 38 C.F.R. §§ 4.3, 4.7. As noted above, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan, supra. Thus, a finding that there is occupational and social impairment resulting in reduced reliability and productivity is sufficient to warrant a 50 percent disability rating for the entire period on appeal even though all the specific symptoms listed for a 50 percent rating are not manifested. At the July 2012 VA examination, the Veteran was diagnosed with mild PTSD and assigned a GAF score of 58. The Board finds that the Veteran's GAF score of 58 reflects, at most, moderate PTSD symptoms. See DSM-IV at 46-47. The July 2012 VA examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, a description that reflects mild, not even moderate PTSD. The Veteran reported that he spends the majority of his free time watching TV, sitting and relaxing outside, and with family and friends. The Veteran reported that he had to stop working because of pain and vascular disease. Conversely, at the May 2009 VA examination, the Veteran was diagnosed with PTSD and bipolar disorder and assessed with a current GAF score of 55 and a score of 50 for the past year. Both of these GAF scores were noted by the examiner as "moderate." The examiner noted that both the Veteran's PTSD and bipolar disorder were mild. During the June 2004 VA examination, the Veteran was diagnosed with mild PTSD, chronic and was assessed with a GAF score of 50. The VA examiner stated that the Veteran's PTSD signs and symptoms were very mild with superficial symptoms and not deep manifestations. During the October 2005 VA examination, the Veteran was diagnosed with PTSD, by history, and assessed with a GAF score of 50. The Board finds that the Veteran's GAF scores of 50 are not supported by contemporaneous findings, and are highly inconsistent with the Veteran's psychological presentation during the course of this appeal. While GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job), id., such general characterization of overall impairment due to psychiatric disorders suggested by the assignment of a GAF score of 50 is inconsistent with the more specific and detailed social and occupational impairment and symptoms the Veteran has actually experienced during the course of the appeal, as reflected in both lay reports and clinical findings of symptoms and degree of occupational and social impairment including the more specific symptoms and findings by the same examiners who assigned GAF scores of 50. Notwithstanding the GAF scores of 50, VA examinations of record show that the Veteran repeatedly denied suicidal ideation and did not have severe obsession rituals. The Veteran's acquired psychiatric disorders did not result in an inability to do work. At the June 2004 VA examination, the examiner noted that the Veteran was working successfully as a cook before his vascular disease and that the Veteran did not report that his work as a cook was harmfully influenced by PTSD manifestations. At the October 2005 VA examination, the Veteran reported that he had served as a cook for the last fifteen years and served as a cook at another location for about five years. While the Veteran did indicate that he was nervous while working, this does not demonstrate an inability to keep a job. At the May 2009 VA examination, the Veteran reported living with his wife, daughter, and several grandchildren. He reported that he had one close friend that he could trust or rely on for help if needed. At the 2009 VA examination, the Veteran reported that he had to quit working because of the pain in his legs. Additionally, June 2004, May 2009, and July 2012 VA examinations reports all characterize the Veteran's PTSD, and in some instances bipolar, as mild. The Board finds that the GAF scores of 50 are inconsistent with, and outweighed by, the more specific lay and medical findings, and are not of significant probative value in this case. The Board finds that the more probative evidence of record shows that the Veteran's acquired psychiatric disorders, to include PTSD, are moderate in degree, and reflects occupational and social impairment and symptoms consistent with a 50 percent disability rating. The Board also finds that the criteria for a disability rating of 70 percent have not been met or more nearly approximated for any part of the rating period on appeal. The evidence does not show that the Veteran experiences occupational and social impairment with deficiencies in most areas, and has not experienced obsessional rituals, near continuous panic or depression affecting the ability to function independently, impaired impulse control, neglect of personal hygiene, or spatial disorientation, as contemplated by a 70 percent disability rating under DC 9411. 38 C.F.R. § 4.130. At the October 2005 VA examination, the VA examiner noted that the Veteran was well oriented to time, place, person, and situation. While the Veteran was not oriented to time at the May 2009 VA examination, he was oriented to person, place, and situation. At the July 2012 VA examination, the VA examiner noted no spatial disorientation. At the VA examinations, the Veteran repeatedly denied suicidal ideation. The Veteran's speech was not found to be intermittently illogical, obscure, or irrelevant at the VA examinations. The Veteran also does not have impaired impulse control such as unprovoked irritability with periods of violence. The October 2005 VA examination report notes that the Veteran stated that he had four to five "temper tantrums" on a regular basis toward his wife and children but does not indicate that these instances are associated with periods of violence. A March 2009 VA treatment record notes that the Veteran denied a history of violent or aggressive behavior. The Veteran is able to establish and maintain effective relationships. At the May 2009 VA examination, the Veteran reported living with his wife, daughter, and grandchildren and having one close friend. At the July 2012 VA examination, the Veteran reported spending free time with family and friends. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met or more nearly approximated. During this initial period there is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, and intermittent inability to perform activities of daily living. As noted above, while at the October 2005 and May 2009, November 2009 and July 2012 VA examinations, the Veteran reported having homicidal ideation in the past, but denied present ideation. The Veteran denied suicidal ideation. At the November 2009 VA examination, the Veteran denied visual or auditory hallucinations, but the VA examiner noted that the Veteran appeared to be reacting to some sort of internal stimuli as the Veteran would suddenly look to the side, chuckle and mumble under his breath as if talking to someone; however, there was no formal evidence of delusions and specifically not persistent delusions. The Board notes that the Veteran was not oriented to time at the May 2009 and November 2009 VA examinations, a symptom included in the criteria for a 100 percent rating; however, the Veteran was found to be oriented to time, place, person, and situation at the October 2005 VA examination. The Veteran was also found not to be disoriented to time or place at the July 2012 VA examination. VA treatment records dated from July 2008 through May 2010 also repeatedly noted that the Veteran was oriented to time, place, person and situation. For these reasons, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a 50 percent evaluation, as a reflection of both the Veteran's symptoms and the social and occupational impairment. See 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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 the claimant'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 approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant'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 the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant'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-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD and associated psychiatric disorders are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested depression and dysthymia; impairment of short and long-term memory; poor concentration; circumlocutory speech; nightmares; intrusive thoughts; anxiety; irritability and outbursts of anger; hypervigilance; chronic sleep impairment; and, impaired judgment. These symptoms are part of the schedular rating criteria. The level of occupational and social impairment is explicitly part of the schedular rating criteria. The GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan at 443. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the acquired psychiatric disorders, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the question of whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has bee raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) is moot, as the Veteran already has a schedular rating of 100 percent based on service-connected disabilities. 38 C.F.R. § 4.16 (2013) ("Total disability ratings for compensation may be assigned, where the schedular rating is less than total"). ORDER Service connection for an acquired psychiatric disorder, to include bipolar disorder, in addition to PTSD, is granted. An increased disability rating of 50 percent, but no higher, for PTSD is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs