Citation Nr: 1448024	
Decision Date: 10/29/14    Archive Date: 11/05/14

DOCKET NO.  12-12 557	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

A. Barbier, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1967 to February 1969.  He is the recipient of the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

This issue was previously remanded by the Board in October 2013.  As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

This appeal was processed using the Veteran Benefits Management System (VBMS) paperless claims processing system.  The Board notes, in addition to the VBMS file, the Veteran also has an electronic Virtual VA paperless claims file.  A review of the documents in Virtual VA reveals that the documents contained therein are either duplicative of the evidence in the VBMS file or irrelevant to the issue on appeal.  


FINDING OF FACT

For the entire period on appeal, the Veteran's PTSD has been productive of symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.  

CONCLUSION OF LAW

The criteria for an initial rating in excess of 30 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2014).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

In the instant case, a July 2010 letter, sent prior to the September 2010 rating decision on appeal, advised the Veteran of the evidence and information necessary to substantiate his underlying service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

Thereafter, the September 2010 rating decision granted service connection for PTSD and assigned an initial 30 percent rating, effective May 24, 2010.  The Veteran subsequently appealed with respect to the propriety of the initially assigned rating from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issue.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for PTSD was granted and an initial rating assigned in the September 2010 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA also has a duty to assist the claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In the instant case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this regard, the Veteran's service treatment records as well as post-service VA treatment records dated through October 2013 have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  

The Veteran was also afforded VA examinations in August 2010 and November 2013 in conjunction with the claim on appeal.  He has not alleged that such are inadequate for rating purposes.  Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected PTSD as they include interviews with the Veteran, reviews of the record, and full psychological examinations, addressing relevant rating criteria.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary.  

As noted in the Introduction, the Board previously remanded this case in October 2013 for further development.  In this regard, the Board directed the AOJ to obtain VA treatment records from January 2012 to the present, schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD and distinguish his PTSD symptoms from those related to his non-service-connected depressive disorder, and to readjudicate the Veteran's claim in a supplemental statement of the case.  As noted above, VA treatment records dated through October 2013 were associated with the record.  Furthermore, the Veteran underwent a VA examination in November 2013 that addressed the nature and severity of his PTSD and distinguished between symptoms related to such disorder and those related to his depressive disorder.  Thereafter, the Veteran's claim was readjudicated in a January 2014 supplemental statement of the case.  Thus, the Board finds that the AOJ has substantially complied with the October 2013 remand directives such that no further action is necessary in this regard.  See D'Aries, supra.  

The Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.  

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  The Board may consider whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

The Veteran's service-connected PTSD is evaluated under the criteria of DC 9411.  See 38 C.F.R. § 4.130.  A 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occasional 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).  Id.  

A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.  

A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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.  Id.  

A 100 percent evaluation is warranted where there 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.  Id.  

As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013).  The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'"  Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. 

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination."  38 C.F.R. § 4.126(a).  

In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran.  The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms.  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)).  

Under DSM-IV, GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  

GAF scores ranging between 41 and 50 are assigned when there are 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).  

The Board notes that a GAF score need not be accepted as probative if it is determined that the score does not reflect the overall psychiatric disability picture at the time of the examination.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others).  However, the probative value of the GAF scores will be considered in light of the other evidence of record.  

VA treatment records dated December 2009 noted the Veteran looked out at tree lines when driving to check for danger, had intrusive thoughts about Vietnam, and was fidgety.  In January 2010, he reported spending time with his family for the holidays and noted doing cooking at home to help his wife.  In February 2010, a mental status examination found the Veteran to be alert, oriented, and somewhat repressed with an even mood.  He reported getting "paralyzed at times" and not wanting to participate in any activities.  In March 2010, the Veteran reported periodic dreams with some nightmares.  He noted that he attended bible study, was involved with his grandchildren, and took road trips with his wife.  He further reported participating in neighborhood parties and that he enjoyed social gatherings.  In April 2010, the Veteran reported improved socialization, less displays of anger and survivor's guilt.  He noted his positive marriage and expanded participation in church activities.  He further reported being interested in employment and applying for jobs.  He noted wanting to expand outside his present activities to additional volunteer work.  

In a May 2010 statement, the Veteran reported feeling guilt over those killed in Vietnam that he was not able to help.  VA treatment records dated June 2010 noted the Veteran's emotional numbness and fears about misdirected anger.  In July 2010, the Veteran was noted to be alert, oriented and verbally clear and direct.  He reported feeling uneasy with people coming up behind him in the waiting room.  He noted irrational thoughts of danger in natural settings like walking at a nature center.  He reported being involved in many family events.  He was noted to have intrusive difficulty with outside settings.  

An August 2010 VA examiner noted the Veteran's reports of nightmares, insomnia, moodiness, and irritability.  The Veteran noted being afraid to go to groups.  He described himself as a loner and noted he did not have many friends.  The examiner noted he changed his job frequently due to being resentful to authority.  He reported no hobbies or interests.  He noted survival guilt feelings and feeling bad about those who died in Vietnam.  On mental status examination, the examiner noted poor eye contact and spontaneous speech.  The Veteran's mood was somewhat depressed with grossly logical, relevant and mood-oriented thought process.  The Veteran reported he did not trust people and was suspicious of others.  He denied gross delusions.  His insight, judgment, and intelligence were noted to be fair.  He noted that he had nightmares once or twice a week.  He further noted he could not focus very well.  He reported that loud sounds bothered him.  He also noted that he had flashbacks when hearing loud sounds or watching the news about war in Iraq and Afghanistan.  He reported taking care of his lawn and spending time with his wife.  He noted he did not like to attend social functions and mainly stayed home watching television.  The Veteran noted a short temper and feeling anxious and lonely.  He reported checking that all doors and windows were closed every night before going to bed.  He denied any suicidal ideations but reported entertaining suicidal ideation a couple of times.  He denied any suicidal attempts.  He reported feeling numb.  His wife noted that he did not show any emotions.  The examiner diagnosed PTSD with a GAF score of 60.  

VA treatment records include a December 2010 mental status examination noting good hygiene and posture, no psychomotor retardation or agitation, normal speech, euthymic affect with congruent mood, and logical and coherent thought processes.  No delusions, paranoia or preoccupations were noted.  The Veteran was noted to have no auditory or visual hallucinations and no suicidal or homicidal ideation.  His attention, concentration, judgment and memory functions were adequate.  A GAF of 55 was assigned.  In January 2011, the Veteran reported erratic sleep with nightmares coming in streaks.  He also noted involvement in church and jail ministry.  In March 2011, the Veteran denied suicidal and homicidal ideation.  He reported trouble falling asleep and waking during the night with continued nightmares.  A GAF of 55 was assigned.  

In May 2011, the Veteran was noted to have clear and organized thoughts.  Bridge anxiety was noted as well as a better ability to be rational about tree lines.  In July 2011, the Veteran was noted to have flashbacks to Vietnam triggered by trees, tree lines, sounds and smells.  A mental status examination revealed mild distress with a flat affect and congruent mood.  A GAF of 50 was assigned.  A September 2011 note showed no improvement with flashbacks, which affected the Veteran's ability to interact appropriately with outside.  He reported occasional nightmares.  A GAF of 50 was assigned.  In October 2011, the Veteran reported that his sleep was still broken.  

In his May 2012 substantive appeal, the Veteran reported panic attacks three or four times a week, impairment of his short-and long-term memory, impaired judgment and difficulty with social relationships.  VA treatment records dated October 2012 included a mental status examination documenting partial insight.  A January 2013 mental status examination noted a flat affect with congruent mood, no suicidal or homicidal ideation, and adequate judgment.  A GAF score of 55 was assigned.  In July 2013, the Veteran reported two to three arousals per night due to nightmares.  Normal concentration, attention and speech were noted on a mental status examination.  The Veteran's mood was mildly anxious and dysthymic with a moderately constricted affect.  No suicidal or homicidal ideations or delusional thoughts were noted.  His insight and judgment were fair.  

In a September 2013 hearing presentation, the Veteran's representative noted that the Veteran had panic attacks more than once a week, memory loss, impaired judgment, disturbances of mood and motivation, and significant difficulty with social relationships.  VA treatment records dated October 2013 noted problems with sleep and bad dreams.  The Veteran reported he was depressed and anxious.  

A November 2013 VA examiner noted diagnoses of PTSD and depressive disorder, not otherwise specified.  The examiner noted that it was possible to differentiate symptoms attributable to each diagnosis.  He noted that the Veteran's depressed mood, low energy, hopelessness, guilt, and decrease in appetite were due to his depressive disorder diagnosis.  The examiner opined that the Veteran's PTSD symptoms resulted in 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 medication.  The examiner noted that 70 percent of the Veteran's occupational and social impairment was due to his PTSD symptoms.  

The Veteran reported to the examiner that he was married to his wife for 44 years.  He described his marriage as having a degree of conflict due to his level of irritability and anger.  He reported seeing his sons and grandchildren regularly.  He reported having acquaintances but few friends.  He noted that he felt uncomfortable in most social situations due to his hypervigilance and difficulty trusting others.  He further reported occasional contact with his brother with whom he reported a satisfactory relationship.  The examiner noted the Veteran was working as a peer support specialist with VA, which the Veteran described as satisfactory.  The Veteran reported combat-related nightmares 0-4 times per week, with twelve nightmares occurring in the previous month.  He endorsed vivid, intrusive images and thoughts about his combat trauma.  He further endorsed psychological reactivity to trauma-related cues, avoidance of trauma-related cues, social withdrawal, restricted range of affect, marked anhedonia, irritability, hypervigilance, concentration difficulty and sleep disturbance.  The Veteran noted that his anger and irritability had improved with medication.  He further noted that, since his last examination, his symptoms had remained stable with the exception of an increase in his restricted range of affect.  

With respect to PTSD criteria, the examiner noted recurrent, involuntary, and intrusive distressing memories of the traumatic event, recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event; and intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.  The examiner further noted avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state; markedly demised interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions.  The examiner also noted depressed mood, panic attacks occurring weekly or less, flattened affect and chronic sleep impairment.  On a mental status examination, the examiner noted the Veteran was adequately groomed and appropriately dressed with a flat affect.  The Veteran was noted to grow tearful at times.  He exhibited adequate concentration and conversational abilities.  

Psychometric testing was consistent with a severe level of depressive symptoms, a moderate level of anxiety symptoms, and moderate feelings of stress, worry, and discomfort on a day-to-day basis across typical situations.  Such testing also revealed an indication of symptom exaggeration, resulting in the Veteran appearing worse off psychologically than he actually may be, though not so much as to render his evaluation invalid.  The examiner noted that the Veteran had regained employment since his last evaluation and otherwise experienced little change in his symptoms.  The examiner noted that any change in symptoms was likely due to natural symptoms variation over time.  

As an initial matter, the Board also notes that, in addition to PTSD, the Veteran has been diagnosed with depressive disorder not otherwise specified.  The Court has held that, when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition.  See Mittleider v. West, 11 Vet. App. 181 (1998).  However, in the instant case, the November 2013 VA examiner specifically determined that it was possible to differentiate symptoms attributable to each diagnosis.  Specifically, he noted that the Veteran's depressed mood, low energy, hopelessness, guilt, and decrease in appetite were due to his depressive disorder diagnosis.  Therefore, such symptomatology will not be attributed to the Veteran's PTSD.  

In light of the evidence of record, the Board concludes that the Veteran's disability related to his PTSD most nearly approximates the criteria for a 30 percent evaluation as such results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occasional tasks due to symptoms that include panic attacks less than once a week, anxiety, anger and irritability, flashbacks, occasional nightmares, hypervigilance, chronic sleep impairment, and suspiciousness.  Moreover, such result in impairment of social functioning as indicated by the Veteran's distrust of others, fear of groups, and lack of close friends.  Furthermore, he has occupational limitations as indicated by his anhedonia, concentration difficulty, and irritability.  However, while such symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the Veteran can generally function satisfactorily with routine behavior, self-care, and normal conversation.  As such, the Board finds that the Veteran's PTSD most nearly approximates the criteria for a 30 percent rating for the entire appeal period.  As noted previously, the symptoms listed for the rating criteria for 30 percent are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify" a 30 percent rating.  Mauerhan, supra.  

The Board further finds that the assigned GAF scores are largely consistent with a 30 percent rating.  In this case, the Board finds that the Veteran's overall symptomatology supports assignment of the 30 percent rating.  During the period on appeal, the Veteran has generally been assigned GAF scores in the 51-60 range.  Such scores are generally consistent with moderate symptoms resulting in moderate difficulty in social, work, and school functioning.  As discussed above, GAF scores are not determinative evidence of the rating to be assigned but must be considered in light of all of the evidence.  In the present case, the Board finds the Veteran's GAF scores probative to the extent they are consistent with the Veteran's overall disability picture, which supports a 30 percent disability evaluation.  

The Board does not find that the Veteran's PTSD symptoms are reflective of the criteria for or more nearly approximate a rating of 50 percent, which requires occupational and social impairment with reduced reliability and productivity.  In this regard, the evidence shows no memory impairment, no difficulty in understanding complex commands, normal speech, and fair to adequate judgment.  The Veteran and his representative have reported panic attacks more than once a week; however, the medical evidence of record is silent as to panic attacks, and the November 2013 VA examiner noted panic attacks occurring no more than weekly.  In this regard, the Board finds the VA examiner's report of weekly panic attacks more probative than the Veteran and his representative's statements as the VA examiner's report is more consistent with the overall disability picture described by the medical evidence.  Additionally, the Veteran has demonstrated a flattened affect at various times throughout the period on appeal.  While this particular symptom falls under the list for a 50 percent evaluation, it is the only symptom indicating such an evaluation, as will be further discussed below.  

The evidence reflects disturbances in mood, in the form of anger and irritability, as well as some motivation disturbances, as the Veteran reported feeling "paralyzed" and anhedonia.  However, the Veteran reported to the November 2013 VA examiner that his anger and irritability had improved with medication.  He further indicated throughout the record that he was taking on volunteer work, noting in April 2010 a desire to increase his volunteer work.  Additionally, the Veteran reported in November 2013 that he was working with VA and had no difficulties or issues with his employment indicative of a lack of motivation.  

The Board acknowledges that the evidence of record supports a finding of some problems in establishing and maintaining effective work and social relationships.  However, the Veteran has been married for 44 years and reports spending quality time with his children and grandchildren, including participating in holiday gatherings.  While he indicated some degree of conflict in his marriage due to his anger and irritability in November 2013, he also noted spending quality time with his wife, including taking road trips, and described his marriage as positive in April 2010.  While the Veteran noted that he had no friends, he did indicate that he had many acquaintances.  He further described participating in volunteer activities, bible studies, neighborhood parties, and attending church.  These relationships and social activities indicate an ability to establish and maintain effective work and social relationships, despite the Veteran's other symptomatology.  

The Board finds that the preponderance of the evidence supports a finding that the Veteran's symptoms are not reflective of the criteria for or most nearly approximate the 50 percent rating criteria.  This is especially true when considering the effect of the Veteran's symptoms on occupational and social functioning.  As noted above, the Veteran reported involvement in church, including jail ministry, volunteer work, and engaging with his family and neighbors.  He reported road trips with his wife and spending time with his children, grandchildren, and brother.  Furthermore, the Veteran was able to obtain employment as a peer support specialist, a job he reported having for a year at the time of the November 2013 VA examination.  While the Veteran indicated that he previously had issues with employment as a result of his resentment towards authority, which led to his changing jobs often, he noted that he was laid off from jobs due to the economy and not due to difficulties from his symptoms.  Thus, the Board finds that the Veteran's symptomatology does not result in reduced reliability and productivity in occupational and social functioning as required by the rating criteria for a 50 percent evaluation.  

Because the Veteran's PTSD symptoms do not approximate a 50 percent disability evaluation, it is impossible to find that a 70 percent evaluation, which requires more severe symptoms as well as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood, is warranted.  Furthermore, it is similarly impossible to find that the Veteran's PTSD symptoms approximate a 100 percent evaluation, which requires total occupational and social impairment.  

The Board has considered whether staged ratings are appropriate for the Veteran's service-connected PTSD.  See Fenderson, supra.  However, the Board find that his symptomatology has been stable throughout the appeal period; therefore, assigning staged ratings for such disability is not warranted.  

The Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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.  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.

Second, 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 "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Federal Circuit provided guidance in rating psychiatric disabilities, emphasizing that the list of symptoms under a given rating is nonexhaustive.  Vazquez-Claudio, supra.  The psychiatric symptoms present in this case are either listed in the schedular criteria or are similar in kind to those listed, as discussed above.  Review of the claims file does not reveal that the Veteran suffers from any symptoms of PTSD that are not contemplated in the nonexhaustive list of symptoms found in the schedular criteria.  Furthermore, the rating schedule provides for greater compensation for greater disability than that suffered by the Veteran.  The rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

Furthermore, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  In the instant case, in addition to PTSD, the Veteran is also service-connected for bilateral hearing loss and tinnitus.  However, in Johnson, the Federal Circuit did not indicate whether its holding applied to all disabilities for which the Veteran was service-connected at the time of the Board decision or only to those disabilities for which the Veteran was seeking increased ratings and that the Board was adjudicating as part of its decision.  In Johnson, the Veteran was in receipt of service connection for left knee degenerative changes in addition to rheumatic heart disease and right knee degenerative changes.  The appellant argued that the Board erred in not collectively considering the collective impact of rheumatic heart disease and right knee disability, which were the only two increased rating claims that the Board was considering on the merits.  The Board had remanded the claim for an increased rating for left knee degenerative changes to the AOJ for additional development.  There was no argument before the Court or the Federal Circuit that the effect of the left knee disability should have been considered along with the other two disabilities.  Consequently, the Board finds that, consistent with its interpretation of Johnson, because the claim for an increased rating for PTSD is the only increased rating claim to be adjudicated at this time, it is the only disability that must be considered in the extra-schedular analysis.

However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability or a specific non-service-connected disability, as outlined by the November 2013 VA examiner with respect to the Veteran's depressive disorder as opposed to his PTSD.  Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In this case, the Veteran has not expressly alleged that he is currently unemployed or unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD disability.  The Veteran noted in the August 2010 VA examination that he was laid off in 2009 and remained unemployed.  VA treatment records dated October 2013 noted that the Veteran was applying for a driving position with VA and needed occupational clearance from his physician, which was given.  The November 2013 VA examiner noted the Veteran was previously laid off in the midst of the downturn in the economy.  At that time, he was working for the past year as a peer support specialist with VA.  The Veteran described his work as satisfactory.  The examiner opined that, given the Veteran's increase in occupational functioning and his inherent contact with previously avoided stimuli as a result of his work, it was unlikely that his PTSD symptoms have any bearing on his employability.  The Veteran denied any disciplinary action or struggles participating in his work environment.  

The Board finds that Rice is not applicable to the current appeal.  A claim for TDIU is implicitly raised whenever a pro se Veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.  Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  The Board finds that such cogent evidence is not present in this case.  Thus, any further discussion of an issue of entitlement to TDIU is not necessary.  

In summary, the preponderance of the evidence shows that the Veteran's PTSD approximates the schedular rating criteria for a rating of 30 percent for the period of time on appeal.  There is no reasonable doubt to be resolved in this case.  38 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

An initial rating in excess of 30 percent for PTSD is denied.  



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs