Citation Nr: 1338546 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 99-17 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to June 1, 2006, exclusive of temporary total hospitalization ratings. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. In August 2012 the Board denied the Veteran's claim for entitlement to a rating in excess of 30 percent for PTSD, prior to June 1, 2006, exclusive of temporary total ratings. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Partial Remand (JMR). The Board's decision was vacated and the Veteran's claim was remanded to the Board. The Board notes that the JMR determined that the Board failed to provide an adequate statement of reasons and bases, particularly in light of the Court's decision in Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002), and failed to discuss relevant record evidence in its statement of reasons and bases. Prior Procedural Background This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which confirmed and continued a 30 percent disability rating for the Veteran's PTSD. The disability had been rated as follows: 30 percent from June 9, 1994; 100 percent from June 4, 1996 (hospitalization); 30 percent from July 1, 1996; 100 percent from February 18, 1997 (hospitalization); 30 percent from April 1, 1997; 100 percent from June 22, 1999 (hospitalization); 30 percent from August 1, 1999; 100 percent from April 10, 2006 (hospitalization); and, 70 percent from June 1, 2006. The Veteran participated in a Decision Review Officer (DRO) hearing in May 2000. A transcript of that proceeding has been associated with the Veteran's claims file. Review of the transcript shows that the DRO fully explained the issues and suggested the submission of additional evidence. 38 C.F.R. § 3.103(c)(2) (2012). In August 2001, the Board denied the Veteran's appeal for a disability rating in excess of 30 percent for his service-connected PTSD. He subsequently appealed the Board's decision to the Court. In August 2002, the Court granted a Joint Motion for Remand (JMR) to vacate the August 2001 Board decision and remand the matter to the Board. On May 1, 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated, in part, the regulations which had permitted the Board to develop the evidence without having to remand the appeal to the RO. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the Board remanded the case in July 2003 for additional development. The Board remanded the Veteran's claim again in May 2004 for additional development. In an August 2005 decision, the Board denied an evaluation in excess of 30 percent for the Veteran's service-connected PTSD. The Veteran again appealed to the Court. Pursuant to a February 2006 JMR, the Court vacated the August 2005 Board decision and remanded the matter to allow the Board to rule on the Veteran's motion for a 60-day extension of time to submit additional evidence for his claim and to vacate the August 2005 Board decision. In March 2007, the Board vacated the prior August 2005 decision that had denied the Veteran's claim. When the case was before the Board in April 2008, it was remanded for procedural notices, VA records from 2004 to "present," examination of the Veteran, and readjudication. The required notices were sent in July 2008. VA clinical records from September 2004 to June 2008 (the "present" date at the time) were obtained. The Veteran was examined in July 2008. The case was readjudicated in December 2009. In that readjudication, a DRO increased the rating to 70 percent effective June 1, 2006 (following a total rating for hospitalization). Because the DRO did not award the maximum rating possible, these matters remain in appellate status before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran pursued the appeals. In December 2009, the RO issued a supplemental statement of the case (SSOC) on the 70 percent rating. In August 2011, the RO issued a statement of the case (SOC) on the issue of entitlement to an earlier effective date to the 70 percent evaluation prior to June 1, 2006, for the service-connected PTSD. In actuality, the Board must consider the possibility of assigning any rating in excess of 30 percent, so the issue has been rephrased to reflect that consideration. The Board must review all issues which are reasonably raised from a liberal reading of all documents or oral testimony submitted prior to its decision. Myers v. Derwinski, 1 Vet. App. 127, 130 (1991); EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Solomon v. Brown, 6 Vet. App. 396, 400 (1994). This decision is limited to the evaluation of the service-connected PTSD prior to June 1, 2006. The issue of entitlement to a rating in excess of 70 percent for PTSD was previously remanded by the Board. A November 2012 rating decision increased the evaluation for PTSD to 100 percent, effective June 1, 2006. As to the issue currently before the Board, since the development requested by the previous remand has been completed, the Board may proceed with its review of the appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. A TDIU claim was denied by the agency of original jurisdiction (AOJ) in December 2010. A SOC on the TDIU denial was sent in March 2012. Inasmuch as a timely substantive appeal has not been received, the matter is not properly before the Board at this time. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. In September 1996 the RO denied a rating in excess of 30 percent for the service-connected PTSD. The Veteran was notified in October 1996 and did not appeal. 2. A claim, formal or informal, for an increased rating for the Veteran's service-connected PTSD was not received between the October 1996 notice of the September 1996 rating decision and the change in the rating criteria for PTSD in November 1996. 3. Following the final denial of September 1996, the next formal claim specifying the Veteran was seeking an increased rating for his service-connected PTSD was received on September 11, 1998. 4. The earliest VA report of examination, treatment or hospital admission, during the year before the claim was received on September 11, 1998, is a VA clinical record dated March 27, 1998. 5. From March 27, 1998, to May 31, 2006 (exclusive of temporary total hospitalization ratings), the Veteran's PTSD was manifested by a level of social and occupational impairment that showed reduced reliability and productivity due to such symptoms as panic attacks more than once week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The September 1996 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.1103 (2012). 2. The current claim for increase began with an informal claim dated March 27, 1998. 38 C.F.R. § 3.157 (2012). 3. With all reasonable doubt resolved in the Veteran's favor, the criteria for an evaluation of 50 percent (but not higher) are met for the period from March 27, 1998, to May 31, 2006. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130 Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims 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 and 3.326(a) (2012). A notice that fully complied with the requirements of the VCAA was sent to the claimant in July 2008. Thereafter, he was afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. This cured any notice defects before the agency of original jurisdiction (AOJ) readjudicated the case by way of a rating decision and SSOC issued in December 2009. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Further, the Veteran is represented by an experienced private attorney who is well versed in the requirements of Veterans Law. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue decided herein has been obtained. The Veteran's service treatment records (STRs) have been obtained. His available post-service treatment records have also been obtained. He has had a VA examination and a medical opinion has been obtained. He has also been afforded a hearing. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). The Board has considered all the evidence of record. Specifically, we have gone back at least a year before the date the claim was received. See 38 C.F.R. §§ 3.157, 3.400(o) (2012). However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007) the Court acknowledged that the extent of a disability may change during the course of a claim and appeal and that different "staged" ratings should be assigned at different stages of the appeal. This case presents such a scenario. Therefore, the Board has considered the application of the rating criteria at all stages of the claim. The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board specifically finds that any evidence not discussed does not support the claim. The current claim was received after November 1996. Effective on and after November 7, 1996, the General Rating Formula for Mental Disorders, including PTSD, is: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name..........................................................................................................100 percent; Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships........................................70 percent; Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships............................50 percent; Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).........................................................................................................30 percent; Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication...................................................................................................10 percent; A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication...................................................................................0 percent. 38 C.F.R. § 4.130 (2012). Background In an August 2002 JMR, it was asserted that the Veteran was treated at VA facilities as early as March 1996 (although the preceding paragraph refers to earlier treatment dating to 1994). "As such it appears that the Veteran's claim for increase rating dates from at least March 1996." 38 C.F.R. § 3.157(b)(1) (2012). Based on this and other information, it appears the Appellant has a pending claim." The JMR went on to note that the criteria for rating psychiatric disabilities changed in November 2006 and the Board had not addressed the earlier criteria. The JMR concluded, "Should the Board determine that the Veteran's claim extends back to March 1996, the Board should address which law is most favorable to the appellant." The Board has carefully considered the points made by the JMR. See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). We find that the Board is constrained by the rules of finality. In September 1996, a rating decision by the RO continued a 30 percent rating for the service-connected PTSD. This decision subsumed all previous outstanding formal and informal claims. The notice letter, sent in October 1996, informed the Veteran of the decision and his appellate rights. The Veteran had a year from that date to file a notice of disagreement with that decision. There is nothing in the record that could be construed as a timely notice of disagreement. Decisions of the RO which are not appealed are final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.1103 (2012). The Federal Circuit has held that this is a jurisdictional matter. That is, no matter how the claim was developed, VA has no jurisdiction to consider the claim unless it is reopened. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). At this point, the Board notes that VA medical records can be accepted as informal claims. However, those provisions apply "only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b)(1) (2012). In this case, review of the file does not disclose anything that could be construed as a formal or informal claim between the time the Veteran was notified of the final rating decision in October 1996 and the time the rating criteria changed in November 1996. Consequently, the rating under the old criteria is final and any new rating would have to be under the new criteria, effective in November 1996. The evidence contains GAF or Global Assessment of Functioning scores. The GAF is a scale 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 from 61 to 70 indicates some mild symptoms, (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF from 51 to 60 is defined as 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 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)." DSM-IV, at 32; Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF from 31 to 40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family and was unable to work). See Cathell v. Brown, 5 Vet. App. 539 (1996). A GAF from 21 to 30 indicates that behavior was considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. It must be emphasized that GAF scores range from the level at which a person is a danger to himself or others to the level of superior functioning. Consequently, they do not translate exactly into VA disability ratings, which are based on the much narrower range of impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012). Therefore, we cannot say that a certain GAF score equals a certain rating. However, the GAF scores are medical opinions as to functional impairment and will be considered. The Veteran's claim for service connection for PTSD was received by the RO in June 1994. By rating decision dated in January 1995, service connection for PTSD was granted and a 30 percent disability rating was assigned, effective June 9, 1994, the date of receipt of the Veteran's claim for service connection. VA clinical records from October 1995 show that October was an important anniversary month, due to the Veteran's helicopter crash in Vietnam. This had been causing excessive rage, anger, and frustration. Nightmares and intrusive thoughts of the war increased. He was back to hitting and kicking objects, as a result of which he had injured his right hand and forearm. In September 1996, the Veteran claimed a temporary total evaluation based on hospitalization and an increased rating for his PTSD. A September 1996 rating decision granted the temporary total disability rating based on hospitalization for the service-connected PTSD from June 4, 1996. The pre-hospitalization rating of 30 percent was continued, effective July 1, 1996. The Veteran did not file a timely notice of disagreement with that decision. During the Veteran's June 1996 VA hospitalization, he gave a history of nightmares, intrusive thoughts, and fits of rage. He reported the symptoms were precipitated by songs, fireworks and the smell of gas or diesel fuel. He had nightmares focusing on traumatic events that occurred in Vietnam. He also described flashbacks, when he felt he was in Vietnam, and guilt over surviving his experiences. He was noted to be cheerful when describing seeing rows of American dead in Vietnam. He said he had noticed an increase of symptomatology during the previous winter. He reported an increase in feelings of depression and his desire to isolate from others. He also reported anorexia, a sense of hopelessness, and suicidal ideation. However, he reported a decrease in suicidal ideation over the previous month, and did not report any specific plan. He had been laid off in August 1994 due to back problems. On mental status examination, the Veteran was noted to be pleasant, cooperative, and with a normal range of affect. He was tearful when describing Vietnam events. There was no apparent disorder of thought form or content; no disorder of speech; and no evidence of cognitive impairment. He denied suicidal or homicidal ideation. The Veteran had been admitted with a primary diagnosis of exacerbation of PTSD. He was treated for three weeks, including no psychiatric medications, other than Trazodone which was discontinued after an increase in nightmares. During his hospitalization, the Veteran was active in group therapy and was described as interacting well with other patients. He was reported to have initially made progress working on his PTSD symptomatology, but about halfway through became sidetracked with an interpersonal relationship. He was discharged with continued nightmares, though he reported a decrease in frequency. At the time of discharge, he also reported an overall decrease in his PTSD symptoms. He denied any suicidal ideation at discharge. His discharge diagnoses were PTSD, history of major depressive disorder, and history of polysubstance abuse. His GAF score was 45. The Veteran's VA therapist, a social worker, submitted a letter in support of the Veteran's claims in September 1996. He noted that the Veteran began treatment in March 1994. During the Veteran's early visits he reported reoccurring memories and nightmares of Vietnam that the Veteran found disturbing and frightening. He was cordial and cooperative during his visits; however, the memories of Vietnam at times became so disturbing that some of the visits were cut short. As a consequence, he began to miss appointments and soon was not coming in for treatment. The Veteran was reported to be making an honest effort to deal with his PTSD. His reaction to the disorder had often been by displaying fits of anger and not being able to deal with the day-to-day stress of a full time job. He was said to exhibit negative behaviors to supervisors which gave him a severe industrial impairment. He was seen to be a person who could not remain productive for a long period of time in today's more stringent work environment. In October 1996, the Veteran attended a group therapy session. He was stable and compliant with his medications. He was supportive of the other members of the group and shared his week with the group. He reported still experiencing some symptoms of PTSD. In a December 1996 group therapy report, it was noted that the Veteran reported to have visited the Vietnam memorial in Washington, D.C. He had returned and gone into social isolation. Later that month, his case was closed for nonattendance to the group. The Veteran was hospitalized from February to March 1997. Prior to admission, he complained of increased frequency in his nightmares, flashbacks, insomnia, and decreased energy and activity levels. He said he had become quite irritable, almost choking a man who inadvertently bumped him in a bar. He denied any suicidal or homicidal ideation. The Veteran was noted to live alone, having been divorced in 1983 after 18 years of marriage. He had a 16 year old daughter. His relationship with his family was described as excellent. He had quit his job as a truck driver due to low back pain. On mental status examination the Veteran was alert, oriented, and appropriate. His speech was spontaneous and fluent. He appeared slightly anxious with a full range of affect. He did not express any depressive cognitions, nor any suicidal or homicidal ideation. He had no thought disorder or perceptual difficulties. He had some insight into his disease. Toxicology screening was negative. It was remarked that the Veteran was admitted due to seasonal stressors. He responded well to the milieu, interacting well socially. He was still troubled by flashbacks and occasional episodes of extreme anxiety which resolved relatively quickly. The Veteran attributed his improvement in his PTSD symptoms to the social milieu. He reported feeling very safe, also noting the benefit of having peers with similar experiences. He participated well in group. He attempted a weekend pass, during which he noted increased stress. Upon returning, his anxiety level again diminished. A second weekend pass went much better, with only minimal increases in his anxiety level. At the time of his discharge, the Veteran had improved sleep, energy, and activity levels with marked reduction in nightmares and flashback frequency. He reported feeling more confident in dealing with his anxiety level. He felt the structured regimen of his discharge plans would see him through the following months, which had been hard on him in the past, due to the anniversaries of several friends' deaths in Vietnam. On discharge his diagnoses were PTSD, history of major depression - currently in remission, and history of polysubstance abuse. The GAF score assigned was 55 to 60. By rating decision dated in May 1997, the Veteran was awarded another temporary total disability rating based on hospitalization for his service-connected PTSD from February 1997. The pre-hospitalization rating of 30 percent was reestablished, effective April 1997. Subsequent to his hospitalization, the Veteran again began group and individual therapy sessions with a social worker/therapist. He was generally noted to be isolative at home and not sleeping well because of his symptoms of PTSD. In September 1997, the Veteran's disability claim was denied by the SSA. A VA clinical note, dated March 27, 1998, shows the Veteran reported residual symptoms of PTSD, such as nightmares, flashbacks, and social withdrawal with increased irritability. He lived alone because he could not establish any meaningful relationships because of his paranoia and aggressive potential. It was noted he had been hospitalized twice previously for exacerbations of PTSD and was now thinking about an inpatient PTSD program at the North Chicago VA Medical Center (VAMC). His medications were reviewed. He was to be followed regularly every three months for medication review and he would be coming in for supportive and group psychotherapy when needed. This is the earliest VA medical record for the period during the year before a formal claim specifying the benefit sought was received on September 11, 1998. At that time, the Veteran submitted a statement specifically requesting an increased rating. Thus, going back to the informal claim, the effective date can be as early as March 27, 1998. 38 C.F.R. § 3.157 (2012). The current claim for an increase was received by the RO on September 11, 1998. A Michigan Disability Determination Service psychiatric examination report, dated in November 1998, notes symptomatology consistent with that reported to VA. The Veteran reported flashbacks, nightmares, and reliving experiences of the war. He complained of lower back pain and right leg pain. He reported trying to hold a job until four years earlier, when he was laid off because of inappropriate "rages." He had been working as a truck driver, but because of his carelessness, recklessness, and increased flashbacks, he was not able to hold a job. [During his June 1996 VA hospitalization, the Veteran admitted that he had been laid off in 1994 due to back problems.] He could not control his driving because of flashbacks and uncontrollable anger. He slept poorly, wakening repeatedly. When he awoke at night, he walked around. He attempted to nap during the day. He denied having any suicidal plans at that time, but admitted to fleeting thoughts off and on since he returned from Vietnam. He reported being hospitalized at least two times at VA for suicidal thoughts. [VA hospitalization summaries show the Veteran had PTSD symptoms, but not suicidal thoughts.] About two years earlier he had injured his hand when he smashed a door with his fist, then he felt suicidal. He was reported to have been married only three years, then divorced, with one daughter. He was not able to get along with people because of his poor anger control. The Veteran did not present with any delusional thinking or hallucinations. He denied having any current suicidal or homicidal plans, but admitted to having had thoughts of suicide in the past. He reported problems with sleep, appetite, concentration, and energy. He was noted to be cooperative and gave information without hesitation. The examiner noted a diagnosis of PTSD, rule out recurrent major depression. The GAF score was estimated at 60. At the time of another visit in March 1999, the Veteran reported he had had an exacerbation of his PTSD when he went to Florida to visit friends. Additionally, he had gotten a rejection letter from VA. Coping skills were discussed. The amount of medication was increased to control his depression. No active suicidal or homicidal ideation was noted. It was indicated he seemed to be able to take care of his activities of daily living fairly well. Supportive psychotherapy was provided and he would be followed up as scheduled. The Veteran was accorded a PTSD examination by VA in April 1999. It was noted that he had had two VA psychiatric hospitalizations. He reported he was seeing a physician at the Saginaw VAMC on a monthly basis since 1992. He was also being followed up by a counselor. Current medications were noted. Information was obtained from the Veteran and his records. He stated that he was currently living alone. The Veteran reported trouble with three dates each year. He had significant difficulty in October, the month in which his helicopter was apparently shot down. He stated that he isolated himself. He also reported fits of rage with people. Additionally, he indicated he had difficulty on Veterans Day. He had feelings of guilt and a depressed mood. He added that a friend of his had committed suicide in February 1999 and this was difficult for him. He described his sleep as poor. The Veteran went on to relate having recurrent nightmares of his helicopter crash 2 to 3 times a month. He described having intrusive memories about Vietnam. He described his appetite as fluctuating and his energy levels as poor. He denied any suicidal ideation. He reported hearing voices calling his name. He also reported having flashbacks in which he would smell fuel or the noise of a helicopter. Further symptoms included getting easily agitated and grabbing people by the throat. He was very careful of his surroundings. He avoided any war movies and avoided talking about Vietnam. He described his concentration as poor. He also reported poor motivation. His daily routine consisted of waking up at 7 o'clock in the morning, drinking coffee, and watching the news. He also did laundry. He read history and science fiction and friends from Vietnam would visit him or call him. In the afternoon, he stated he would take a nap. He reported he did not go out much, and he related his sister helped him with his grocery shopping and balancing his checkbook. The Veteran was noted to be somewhat unreliable about his substance abuse history. He stated he had cut down his alcohol consumption in the past six months. He reported he had been in jail about six different times for alcohol-related problems. He was married from 1979 to 1983. He had one daughter who was 18 years of age. He described a good relationship with her and a good relationship with a sister and with his elderly parents. He was not currently involved in any relationship. He stated he had a half dozen good friends who were all Vietnam veterans. He was involved in The American Legion and Vietnam Veterans. On examination, the Veteran was described as well-groomed. No abnormal behavior was noted. He did not appear to be responding to internal stimuli. Thought processes were organized. Speech was articulate. There was no thought disorder or evidence of psychosis. The diagnosis was PTSD. Also diagnosed was alcohol dependence, in remission. Notation was made of social isolation. He was given a GAF score of 60. The Veteran was again examined for SSA disability in May 1999. He reported that he did not get along with others, stayed to himself, and did not know his neighbors. He had good contact with reality. He had impaired self esteem and motivation. He was spontaneous and goal directed in his thinking. There was no evidence of illogical thought. He reported hallucinations of Vietnam. There was no delusional thinking or other psychotic trends. He admitted to suicidal thinking and related that he had made several attempts with his car and jumping in the river. His last attempt was said to have been in January 1999, with a gun. His sleep and appetite were said to be impaired. The examiner diagnosed depressive disorder, NOS (not otherwise specified), and PTSD, acute chronic. The GAF score was assessed at 50. The Veteran was hospitalized by VA from June to July 1999 for complaints of PTSD symptoms, such as recurring nightmares, intrusive thoughts, flashbacks, depression, difficulty sleeping, poor appetite, feelings of hopelessness and helplessness, survivor guilt, increased startle reflex and hypervigilance, and increased anxiety and panic attacks. Mental status examination on admission revealed an alert, properly oriented individual in good contact with his environment. Judgment and insight were fair. Affect was appropriate. Mood was euthymic. Speech had a regular rate and rhythm. It was coherent and goal-directed. He was not suicidal or homicidal. He denied current delusions or hallucinations, except for PTSD-related problems. The Veteran related his symptomatology while hospitalized. He reported that when he first came back from the war he felt misunderstood. He did not like people to ask him about Vietnam. He found that he could isolate himself from people and drink to forget about Vietnam. He could not hold a job for very long because he could not get along with people in authority. He reported having over a dozen jobs in the previous twenty-five years. He was angry a lot. He suffered from paranoid thinking and flashbacks. He had trouble making decisions and had had suicidal preoccupations. The only friends he had were Vietnam veterans. He was not able to keep a relationship with a woman because he was afraid to get close and share his feeling because of all the loss of life and death that he was around a lot of the time. He reported that much of the time he had the feeling that he was losing control and was afraid that he might hurt someone or himself. He also suffered from panic attacks and a very profound feeling of survivor's guilt. During hospitalization, he participated in psychotherapy. His course in the unit was uneventful. He appeared to have benefited from the program. At the time of discharge, he was on a regular diet. He was to return to the Saginaw VA medical facility for outpatient follow-up. At the time of discharge, it was stated he did not elicit any evidence of psychosis. Notation was made that he was continuing to complain of PTSD problems. The Axis I diagnosis was PTSD. There was no Axis II diagnosis. His GAF score for the past year and at present was assessed at 29. The Veteran was granted SSA disability benefits effective January 1999, the date of his reported suicide attempt. The Veteran gave testimony regarding his psychiatric status at the time of a hearing before a hearing officer at the Detroit RO in May 2000. The Veteran indicated he was continuing to receive treatment at the Saginaw VA medical facility. He was going once every two weeks to see a psychiatrist and once every two weeks to attend Vietnam veterans' group therapy. He reported getting panic attacks if he did not take his medication. He had not worked since 1994. He also reported getting rage attacks that he had to deal with by medication or isolating himself. He reported having flashbacks and increased startle response. He reported being a loner with no close friends. He avoided crowds and public gatherings. He reported still having suicidal tendencies, although he had not made any attempts. It was noted that Social Security records indicated that an attempt at suicide had been made in January 1999. The report of the September 2000 VA PTSD rating examination shows the Veteran's medical records were reviewed by the examiner. The Veteran denied current suicidal or homicidal ideation, but related that he attempted suicide two years earlier by car accident. He recalled that he had hurt his hand at the time. He said that he could not drive since he did not like traffic. He claimed that he did not even renew his license. He added that he slept 10 hours a day, two hours at a time. He described difficulty falling asleep. He said that he was less depressed than before. He denied a change of appetite. He admitted that he had always had recollections of events which happened in Vietnam and had recurring dreams about that. He stated that he wanted to avoid thoughts about his experiences, but he was unable to do so. He avoided situations like traffic and certain smells which reminded him of Vietnam. He reported that he liked to be outside and that he enjoyed gardening and fishing. Notation was made of anger outbursts and difficulty with concentration. He stated he was always hypervigilant. He added that he maintained a good relationship with his daughter, who lived with his ex-wife in a neighboring state. He lived near his sister and she helped him with groceries. His parents lived further north and he reported a good relationship with them. He denied any alcohol or illicit drug use. On mental status examination, the Veteran was described as well nourished and in no acute distress. No abnormal body movements were observed. He was cooperative. His mood was euthymic. His affect was appropriate. Speech was spontaneous, coherent, and relevant. There were no signs of psychosis, including suicidal or homicidal ideation. He was alert and properly oriented. He was able to remember one out of three things in five minutes. There was no other cognitive impairment demonstrated. Insight and judgment were fair. The Axis I diagnosis was PTSD. There was no Axis II diagnosis. His GAF score was 60. It was opined that he met the full criteria for PTSD. He was described as having "moderate" difficulty in social and occupational functioning. While he reported having only a few friends from Vietnam, it was indicated he was able to maintain a good relationship with his sister, his parents, and his daughter. Reference was made to the low GAF score he was given at the time of admission to the Chicago VA, but the examiner stated the current GAF of 60 was being maintained on an outpatient basis. Treatment records, also dated in September 2000, show a periodic visit with his VA psychiatrist for medication review of psychotropics. The Veteran was noted to have been hospitalized for 30 days and was noted to be feeling much better. He was planning to go back in October for a scheduled admission. He was less depressed on his current medication. He had no active suicidal or homicidal ideations. He seemed to be able to take care of his activities of daily living fairly well. A follow-up treatment record, dated in December 2000, reported the Veteran was not readmitted in October. Treatment records, dated roughly every six months, continued to show no suicidal or homicidal ideation. In December 2001, the Veteran reported that since September 11th, 2001, he had been having more nightmares and flashbacks of past traumatic experiences. He was also hearing voices of Vietnamese people during the day time and had a feeling of impending doom. No active suicidal or homicidal ideations were noted. Records show the Veteran was next seen in July 2003, for medication review. He stated that since his father recently had a "ministroke" he was thinking about death and dying a lot. He had been having more nightmares and flashbacks of past traumatic experiences since the war with Iraq. He was also hearing voices of Vietnamese people during the daytime and had a feeling of impending doom. There were no active suicidal or homicidal ideations noted. In October 2003, the Veteran reported he had been having more nightmares and flashbacks of past traumatic experiences because it was the anniversary time of his Vietnam experiences. He was no longer having auditory hallucinations. He had no active suicidal or homicidal ideation. The report of the January 2004 VA examination shows the claims file and medical records were reviewed. The Veteran continued to live alone in an apartment. He had been divorced for the past five years and stated that a few years ago, his daughter moved to another state. He had been able to visit with his family and grandchild a couple of times when they came up to see him. He talked to them frequently on the phone. He denied any romantic relationships, but stated that he did have a female friend who came by his apartment and helped him with shopping, cleaning, and other activities. He stated he also visited a couple of times a month with various Vietnam veterans at a local VFW and felt that these relationships were close. He had not worked in over ten years. He last worked as a truck driver. He believed his PTSD symptoms made it difficult for him to concentrate and focus on his job. He was supported on service-connected pension and Social Security Disability. He told of spending most of his days fairly reclusively in his apartment reading or watching television. He stated that, in the summer, he enjoyed being out in his garden and could ride his bike around the neighborhood. He tended to avoid large crowds and did not drive. He did not do shopping. He was able to socialize to a limited extent as noted above. The Veteran reported that he believed he had become more emotionally labile over the past few years and cried more easily. He acknowledged that his medications helped with flashbacks and nightmares to some extent. He reported some mild worsening of the symptoms around the anniversary of significant triggers of his Vietnam trauma. He tended to avoid issues associated in the war and did not get close to other people. He was hypervigilant and startled easily. He did not sleep at night, but preferred to sleep during the day. His symptoms were worsened by helicopter noises. He had numerous inpatient psychiatric treatments in the past, the last being in 1999. He was currently seeing a psychiatrist as an outpatient at the VA and was on medication. He reported that the medication helped with hypervigilance and voices that he heard regarding his combat experience. The Veteran also stated he was treated for chronic pain in his leg and hip. He denied any other new medical problems. He reported that he smoked occasionally but only drank about one to two alcoholic drinks on average per month. He admitted being a heavy drinker in the past, but had not had recent binges or relapse. He used marijuana in the 70s, but has not used any drugs recently. He also denied a history of any recent legal problems. On mental status examination, the Veteran reported a depressed mood. However, objective findings were normal. He was casually dressed and appeared his stated age. His speech was of normal form and rate. His affect was full and appropriate. There were no current hallucinations or delusions, thought disorders, or suicidal ideation or intent. He showed fair insight into his problems. PTSD was diagnosed. The GAF score was 55. The examiner expressed the opinion that the Veteran continued to show multiple symptoms consistent with the diagnosis of PTSD. He was having "reexperiencing symptoms," consisting of flashbacks and nightmares; although these were somewhat improved with therapy and medications. He also showed psychological numbing, avoidance, and hyper vigilance symptoms. By review of the other records, the examiner opined that these symptoms had remained fairly consistent over the years. The examiner commented that the GAF score of 55 was a fair reflection of the Veteran's current disability from the symptoms. His most recent GAF scores, done in previous VA evaluations were 60. His GAF score on discharge from VAMC hospitalization was 55. The lower GAF score of 29, when he was admitted to VA hospitalization from June to July 1999, was explained by the examiner who noted that GAF scores from admitted patients tended to be lower. He believed the PTSD symptoms were causing a moderate amount of social dysfunction. The Veteran was generally isolated and had some problems with interacting with others, but he was able to sustain relationships with Vietnam friends as well as family members. He was able to perform some activities and interact socially. The examiner opined that the description met the moderate classification of GAF score as defined in DSM IV. A September 2004 VA clinical note shows the Veteran continued to have nightmares. He was no longer having auditory hallucinations. There were no active suicidal or homicidal ideations noted. The psychiatrist noted that overall the Veteran's PTSD symptoms were under control with the current medications. A June 2005 VA clinical note shows the Veteran visited for review of his medications. He was no longer having auditory hallucinations. No active suicidal or homicidal ideations were noted. He seemed able to take care of his activities of daily living fairly well. When seen at the VA clinic in October 2005, the Veteran reported that it was the anniversary of his traumatic experiences and his PTSD symptoms were exacerbated. He also had some relationship problems with his 25 year old daughter. He was no longer having auditory hallucinations. He felt calmer on his current medication. There were no active suicidal or homicidal ideations. He seemed able to take care of his activities of daily living fairly well. He was planning on going to a PTSD program because his PTSD symptoms were exacerbated. Overall, his PTSD symptoms seemed somewhat manageable with current medication. The Veteran returned to the VA clinic in January 2006 for medication review. He was getting along well with his 25 year old daughter. He was no longer having auditory hallucinations. He felt calmer on his current medication. There were no active suicidal or homicidal ideations. He seemed able to take care of his activities of daily living fairly well. Overall, his PTSD symptoms seemed somewhat manageable with current medication. The Veteran was hospitalized for approximately 32 days in April and May 2006. The diagnoses were PTSD, low back pain and liver cyst. The GAF was 33. On admission, the Veteran's chief complaint was that he was still having flashbacks, hopelessness, and there never seemed to be an end to getting better. The Veteran's history was reviewed. It was noted that he had 2 years of college and had last worked as a truck driver in 1996. On mental status examination, he was alert, oriented, cooperative, normoactive, and had good eye contact. There were no thought disorders, delusions, or hallucinations. His mood was mildly dysphoric and anxious. He denied suicidal or homicidal ideations or plans. Insight was fair. The Veteran was treated with individual and group therapy, as well as medication. On discharge, he was stable with a euthymic mood and no evidence of psychosis. He was not considered to be a suicidal or homicidal risk. The RO assigned a 100 percent rating for this hospitalization through May 2006 with a 70 percent rating effective June 1, 2006. Analysis As was described in the Introduction, this case was remanded by the Court upon the filing of a JMR. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1) (West 2002 & Supp. 2012). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis of the Veteran's claim has been undertaken with that obligation in mind. Taken as a whole, the medical evidence prior to June 1, 2006, shows that the impairment from the Veteran's PTSD more nearly approximated the criteria for a 50 percent rating. As demonstrated above, the Veteran's psychiatric symptoms fluctuated throughout the period in question, and while he was doing well at times on his medications, there were other times when hospitalizations were required. On those occasions, the Board notes that his GAF scores had plummeted. As already noted, he was awarded temporary total ratings for these periods of hospitalization. However, it is the Board's conclusion that the severity of his symptoms as detailed above arguably meets the criteria for a 50 percent rating. For example, throughout the period in question, the Veteran described sleep nightmares and flashbacks and increased symptoms with stimuli, to include fireworks and other remembrances of his time in battle. On occasion, he reported panic attacks and described social isolation from others than his family. Fleeting thoughts of suicide were noted for the period of time in question. As such, the Board finds that a substantial number of the criteria for a 50 percent rating have been met, and the Veteran's evaluation should be increased accordingly 50 percent for the period from March 27, 1998, to May 31, 2006. It is further noted that a rating in excess of 50 percent is not warranted for the period in question. Deficiencies in most areas (work, school, family relations, judgment, thinking, or mood) due to symptoms, such as obsessional rituals which interfere with routine activities; illogical or obscure speech, unprovoked irritability with periods of violence, and neglect of hygiene are not demonstrated. The Board recognizes that the Veteran's GAF scores have varied during the appeal period at issue, to 45 and 29 at the time of inpatient treatment. Based upon the January 2004 VA examiner's conclusions, it is concluded that these low scores represented acute and transitory exacerbations of symptomatology. The rating examinations resulting in the GAF score of 60 were given several months prior to hospitalization and during the year following the hospitalization. The Board finds that the predominant level of disability has been reflected by the GAF scores of 55 to 60. The Board also concludes that the clinical records do not reflect findings commensurate with the low GAF scores. It is recognized that the Veteran has led a somewhat isolated life, with contact with his friends who are other Vietnam veterans and limited family contact. This is consistent with GAF scores of 55 to 60, which recognize moderate difficulty in social and occupational functioning. He has not demonstrated deficiencies in most areas so as to demonstrate the level of disability recognized in a 70 percent rating, or total impairment required for a schedular 100 percent rating. Furthermore, as to the specific contention by the Veteran's attorney that a 70 percent rating should be assigned as early as February 1997, it noted that such is not possible because there was an unappealed final decision by the RO in September 1996 with notice sent to the Veteran in October 1996. The law and regulations give a veteran a year from the date of increase in the disability to file for an increased rating and the increase will be effective the date that it is ascertainable that the disability increased. If he does not file within a year of the increase in disability, the effective date will be the date that VA receives the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002 & Supp. 2012). The Veteran's attorney has noted that the Veteran's reported auditory hallucinations meet the criteria for a 100 percent disability rating under the current criteria. The Board does not agree. While the Board recognizes that for a period the Veteran reported hearing voices calling his name, more recently these auditory hallucinations have been noted to be absent. Thus, they do not meet the criterion of "persistent delusions or hallucinations." Even if the Veteran was found to have persistent auditory hallucinations, prior to June 1, 2006, he was never been noted to have other symptoms indicative of total occupational and social impairment. 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 v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443 With respect to occupational impairment, the Board finds that the weight of the evidence establishes that the Veteran's PTSD has had an effect on his employment, but did not render the Veteran totally impaired occupationally during the relevant appeal period: in 2006, he was able to work through the VA Vocational Rehabilitation Program. With respect to his social functioning, the Veteran's PTSD symptoms did not result in total impairment. The record established the presence of moderately severe, not total, social impairment. In summary, the Board concludes that from March 27, 1998, to May 31, 2006, the evidence supports an increased rating of 50 percent, but not higher. Staged ratings are not warranted, other than as, in effect, provided by the assignment of temporary total hospitalization ratings. Otherwise, the evidence does not demonstrate periods during which the Veteran's PTSD symptoms are representative of disability commensurate with a rating or ratings in excess of 50 percent. To the extent indicated, the appeal is granted. 38 C.F.R. § 3.102, 4.3 (2012). Extraschedular Considerations The Board has also considered whether a higher rating is warranted on an extra-schedular basis. 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. 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. Here, as discussed above, the rating criteria for the service-connected PTSD reasonably describe the Veteran's disability level and symptomatology for the designated appeal period. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the available schedular evaluations for the above designated rating period are adequate, and no referral for an extraschedular evaluation is required. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER From March 27, 1998, to May 31, 2006, a rating of 50 percent is granted for PTSD (exclusive of temporary total hospitalization ratings), subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs