Citation Nr: 0508818
Decision Date: 03/24/05 Archive Date: 04/01/05
DOCKET NO. 03-05 854 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Manchester, New Hampshire
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Jason A. Lyons, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1965 to March
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating decision in
which the RO granted service connection and assigned an
initial 10 percent evaluation for PTSD, effective July 18,
2002. That same month, the veteran's representative filed a
notice of disagreement (NOD) with the initial rating assigned
for PTSD. A statement of the case (SOC) was issued in
December 2002, and the veteran's representative filed a
substantive appeal in January 2003.
In July 2003, the veteran testified during a hearing before
RO personnel; a transcript of that hearing is associated with
the claims file. As noted in an March 2004 supplemental SOC
(SSOC), the RO later increased the initial rating assigned
for PTSD to 30 percent, also effective July 18, 2002.
Because the claim for a higher rating for PTSD involves a
request for a higher initial evaluation following the grant
of service connection, the Board has characterized this claim
in light of the distinction noted in Fenderson v. West, 12
Vet. App. 119, 126 (1999) (distinguishing initial rating
claims from claims for increased ratings for already service-
connected disability). Moreover, although the increased the
initial rating assigned for PTSD during the pendency of this
appeal, inasmuch as a higher evaluation is available for this
condition, and the veteran is presumed to seek the maximum
available benefit for a disability, the claim for a higher
initial rating remains viable on appeal. Id.; AB v. Brown,
6 Vet. App. 35, 38 (1993).
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. Since the July 18, 2002 effective date of the grant of
service connection, the veteran's PTSD has been manifested,
primarily, by anxiety, intrusive recollections from service
in Vietnam, reported passive suicidal ideation (with no
intent), minor difficulties in concentration, low energy
level, and difficulties with social relationships; these
symptoms reflect occupational and social impairment with no
more than occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of 30
percent for service-connected PTSD are not met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
At the outset, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West 2002). To implement the provisions of the law, VA
promulgated regulations codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2004). The VCAA and its
implementing regulations essentially include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b). In addition, they define
the obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159(c).
Considering the record in light of the above criteria, the
Board finds that all notification and development action
needed to render a fair decision on the claim on appeal has
been accomplished.
Through the December 2002 SOC, the March 2004 and December
2004 SSOCs, and the RO's letter of July 2002, the RO notified
the veteran and his representative of the legal criteria
governing the claim, the evidence that has been considered in
connection with the appeal, and the bases for the denial of
the claim. After each, they were given the opportunity to
respond. Thus, the Board finds that the veteran has received
sufficient notice of the information and evidence needed to
support the claim. Pursuant to the aforementioned documents,
the veteran has also been afforded the opportunity to present
evidence and argument in support of his claim. In its July
2002 letter sent to the veteran in connection with his then
pending claim for service connection for PTSD, the RO
requested that the veteran provide authorization to enable it
to obtain any outstanding private medical records, and
information to obtain any VA treatment records, employment
records, or records from other Federal agencies, as well as
requested that the veteran submit any additional evidence in
his possession. Through this letter, the Board finds that
the statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by VA
has been met. See Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002) (addressing the duties imposed by 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b)).
The Board points out that, in the recent decision of
Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (Court) held that
proper VCAA notice should notify the veteran of: (1) the
evidence that is needed to substantiate the claim(s); (2) the
evidence, if any, to be obtained by VA; (3) the evidence, if
any, to be provided by the claimant; and (4) a request by VA
that the claimant provide any evidence in the claimant's
possession that pertains to the claim(s). As explained
above, all of these requirements have been met in the instant
case.
However, Pelegrini also held that the plain language of 38
U.S.C.A. § 5103(a)
(West 2002) requires that notice to a claimant pursuant to
the VCAA be provided
"at the time" that, or "immediately after," the Secretary
receives a complete or
substantially complete application for VA-administered
benefits. In the case now before the Board, the documents
meeting the VCAA's notice requirements were provided both
before and after the rating action on appeal. However, the
Board finds that any lack of pre-adjudication notice in this
case has not prejudiced the veteran in any way.
As indicated above, the RO issued the December 2002 SOC
explaining what was needed to substantiate the veteran's
claim within one month of the July 2001 rating decision on
appeal, and the veteran was thereafter afforded the
opportunity to respond. Moreover, the RO notified the
veteran of the VCAA duties to notify and assist in its letter
of July 2002; neither in response to that letter, nor at any
other point during the pendency of this appeal, has the
veteran informed the RO of the existence of any evidence that
has not already been obtained.
The Board also notes that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the veteran. As indicated below, the RO has
obtained outpatient treatment reports from the James A. Haley
VA Medical Center (VAMC), located in Tampa Bay, Florida
(hereinafter Tampa VAMC), dated from October 2001 to July
2002, and from the Manchester VAMC, dated from February 2003
to August 2004. The RO has also obtained the veteran's
Social Security disability compensation records, has arranged
for the veteran to undergo numerous VA examinations, and has
afforded the veteran the opportunity to testify during a July
2003 hearing before RO personnel; the reports of examination
and hearing transcript are of record. In support of his
claim, the veteran has submitted letters from Dr. A.
Drukteinis, private physician, dated from April 1991 and
August 2003, a copy of a January 2003 psychiatric evaluation
conducted by P. Emery, private psychiatrist, and personal
statements dated from April 2002 and July 2002.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
existing pertinent evidence that needs to be obtained.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claim is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102.
Under these circumstances, the Board finds that there is no
prejudice to the veteran in proceeding, at this juncture,
with a decision on the claim on appeal.
II. Background
Treatment records from the Tampa VAMC, include a February
2002 VA psychiatrist's report that documented the veteran's
complaints of emotional instability, sleep fragmentation,
agoraphobic tendencies, avoidance of war-related stimuli,
hypervigilance, exaggerated startle response, and a sense of
a foreshortened future. The treating psychiatrist diagnosed
PTSD, and assigned a Global Assessment of Functioning (GAF)
score of 52. A March 2002 report from a VA social worker
reflects the veteran's report that following separation from
service, his behavioral pattern became explosive and
aggressive. The veteran stated that at that time, he
remained isolated and hypervigilant, and suffered from an
exaggerated startle response, sleep disturbances, and panic
attacks. He further stated that he was limited in his daily
activities because of a foreshortened sense of future, and a
sense of weariness. The social worker treating the veteran
assessed PTSD, chronic and severe, with significant
industrial and social impairment, and assigned a GAF score of
50.
A copy of a May 2002 Social Security Administration (SSA)
disability compensation determination documents the veteran's
award of SSA disability benefits for a psychiatric disorder,
with a primary diagnosis of anxiety disorder, and a secondary
diagnosis of affective (mood) disorder, effective January 1,
2002.
On VA examination in October 2002, the veteran reported that
he experienced anxiety when in crowds and public situations,
and that he had not worked in two years and was currently
supporting himself through Social Security disability
benefits. On mental status examination, the veteran's
behavior was appropriate and relaxed, his speech was normal
and relaxed, and his mood and affect were both within normal
limits. There was no indication of depersonalization or
derealization, or of hallucinations or illusions. The
veteran's thought process, for the most part, was goal
directed. There were no preoccupations, no delusions, and no
suicidal or homicidal ideation. On the administration of a
mini-mental status examination, the veteran scored 28 out of
30 points, which according to the examiner placed the veteran
within a normal range of functioning. The veteran showed a
good fund of general information, his ability for verbal
abstractions was good, and his judgment was adequate for him
to handle his own funds. He had some minor difficulties with
concentration, in the areas of "serials 7s" and other
similar tests. The veteran reported that at times he used
alcohol to self-medicate. He stated that he thought about
his Vietnam service on a daily basis, and that when he would
recall events from service he would deal with this
recollection by attempting to focus on another task. He also
reported that in the past he had experienced panic attacks,
in particular in his former occupation as a sales
representative, although he stated that these attacks had not
occurred recently.
The examiner diagnosed PTSD, in remission due to the
effectiveness of medication; and alcohol abuse, possible
alcohol dependence. A GAF score of 80 was assigned. The
examiner further noted that the veteran did not then appear
to have met all of the criteria for PTSD, and that the
veteran had reported that his medication was working well for
him and was helping treat any depression and anxiety;
according to the examiner, the veteran reported that his mood
was a 6 on a scale of 0 to 10 (0 being very depressed and
10 being well-adjusted), and his level of anxiety was also a
6 (0 being very anxious and 10 being very relaxed). Also
noted was that the veteran reported receiving six to eight
hours of good sleep in the evening, and that he was a very
social man with good verbal skills, who appeared to be
functioning well.
A January 2003 report of a psychiatric evaluation conducted
by P. Emery, a private psychiatrist treating the veteran,
notes that the veteran reported he consistently experienced a
state of mind by which he was frequently at a loss to
adequately care for himself. He reported changing jobs on
average every two years since his separation from military
service, and that he had difficulty showing emotion. He
complained of feeling isolated in life, of having phobias,
and of ongoing physical aches and pains. On mental status
examination, the veteran was casually dressed, cooperative,
and attentive. His attitude was of being somewhat tentative,
and he was slow and hesitant in his speech. He appeared
somewhat anxious and depressed, although he was able to reach
some state of relaxation during the interview with the
psychiatrist. The veteran appeared to experience moods of
desperation and self-contempt. He referred to problems with
irritability, anger, and a sense of futility; and as a result
of these problems, his affect was constricted and dysphoric.
There appeared to be a constant threat of depersonalization
because of the veteran's psychiatric condition. It was also
noted that the veteran's memories and somatic experiences
suggested early manifestations of preoccupations and
obsessions. He appeared to be experiencing life
circumstances as being under the control of his past
experiences, and this was contributing to an apparent
impairment of judgment and a feeling of being "burnt out."
The psychiatrist evaluating the veteran diagnosed PTSD,
chronic and severe, and assigned a GAF of 35, noting that the
veteran had experienced major impairments in several areas
such as work, school, family relations, judgment, thinking,
and mood. The psychiatrist further stated that he considered
the veteran to be totally disabled, primarily due to his
PTSD.
Treatment records from the Manchester VAMC, dated from
February 2003 to August 2004, include a September 2003 report
of an initial mental health assessment conducted by a VA
registered nurse, which noted the veteran's report of
symptoms of anxiety, nightmares, and flashbacks. Also noted
was that the veteran was alert and well-oriented, speech was
normal, affect was blunted and restricted, with a depressed
mood, thought content was normal with no signs of perceptual
disturbances, insight and judgment were good, memory was
intact, and there were no signs of suicidal or homicidal
thoughts. The diagnosis was PTSD and depressive disorder,
with an assigned GAF of 60. An October 2003 VA
psychiatrist's report reflects that the veteran complained of
having anger, irritability, hypervigilance, suspiciousness,
insomnia, nightmares, intrusive thoughts, and reactivity to
reminders of his Vietnam service. It was noted objectively
that the veteran was alert and oriented, his mood appeared
euthymic and affect was appropriate, and his speech and
thought processes were clear and coherent. There was no
evidence of hallucinations or delusions, or suicidal or
homicidal ideation. Attention and concentration appeared
intact on gross examination, and judgment appeared adequate.
The psychiatrist assessed PTSD, with a GAF of 60. The
records of the veteran's ongoing monthly treatment sessions
with this psychiatrist through August 2004, note additional
symptoms of low energy, low motivation, and on one instance,
passive suicidal ideation, although with a clear denial of
active suicidal ideation, intent, or plan. Throughout this
time frame, the veteran's assigned GAF scores ranged from 54
to 60.
During a July 2003 hearing before a Hearing Officer at the
RO, the veteran testified that he had difficulty getting
along with others and was socially isolated, and that he was
having difficulty finding employment as a result of his PTSD
symptoms. He also reported having sleep problems, including
nightmares, which required him to use sleeping medications.
In a September 2003 supplemental opinion, the October 2002 VA
examiner clarified his previous diagnosis, stating that based
on a more recent review of the veteran's claims file
(including the recently submitted report of the January 2003
private psychiatrist's evaluation and updated VA outpatient
records), the veteran did not appear to have any additional
psychiatric disabilities other than PTSD, and alcohol abuse
and/or dependence. The examiner further noted that with
respect to any employment impairment, the veteran's primary
impairment to working appeared to be his alcohol abuse
dependence. He also indicated that the assigned GAF score of
80 for the veteran was appropriate, given that the veteran
was very social, participated in various recreational sports
and hobbies, and maintained a good relationship with many
family members, and also considering that the veteran's
symptoms overall were basically transient, and were being
successfully treated with medication. According to the
examiner, the GAF of 35 assigned by the January 2003 private
psychiatrist suggested that the veteran was unable to take
care of himself or anyone else, when, in fact, the clinical
information in the veteran's case showed otherwise. The
examiner also noted that, in his opinion, the veteran could
return to work if he could gain control of his alcohol abuse
and dependence; that the veteran's PTSD symptoms remained in
remission because of the effectiveness of his medication;
that his assigned GAF score of 80 corresponded to only a
slight impairment in social and occupational function; and
that his symptoms were transient and expectable reactions to
psychosocial stressors other than involving his experiences
from service, such as helping take care of his brother.
On VA examination again in February 2004 (by the same
psychiatrist who conducted the October 2002 examination), the
veteran reported that he remained unemployed. He stated that
over the past year, he had not lost his temper on any
occasion. He reported that he did not have any friends. He
further stated that he would think about his experiences in
Vietnam every day, and that on these occasions, his blood
pressure would rise and he would develop a shortness of
breath. The veteran also related that he had stopped
drinking in 2002, and had also given up playing golf. On
mental examination, the veteran was dressed appropriate to
the weather and appeared neat and clean. His behavior was
initially tense, and he stated that on his previous VA
examination he had inaccurately portrayed his mental state as
less serious than in reality. The veteran's speech was
normal, and his mood, for the most part, was euthymic. His
affect was appropriate and animated. There were no
indications of depersonalization or derealization, and he
denied any hallucinations or illusions. The veteran's
thought process was logical and goal-directed. There were no
obsessions or delusions. The veteran did report having some
passive suicidal ideation, however, he stated that he would
never attempt suicide. He denied any homicidal ideation. He
was most likely functioning in the average to above-average
range of intelligence. Long-term and short-term memory were
commensurate with age. Attention and concentration were also
commensurate with age. Level of abstraction and insight were
within normal limits. The veteran reported receiving nine to
ten hours of sleep each night. He reported having a low
energy level. He denied any experiences of mania.
The examiner diagnosed PTSD, chronic; alcohol abuse, in
remission for one year, by the veteran's report; and diazepam
dependence; and assigned a GAF of 60. The examiner noted
that the veteran at that time appeared to meet the each of
criteria for a diagnosis of PTSD. With respect to the
assigned GAF, the examiner noted that this score was in the
"moderate symptoms" range because the veteran had reported
some difficulties with friendships; the veteran had also
stated that he often stayed to himself, though he had
indicated at times he preferred being alone. It was also
noted that the veteran's diazepam dependence appeared to be
secondary to PTSD.
III. Analysis
In general, disability evaluations are assigned by applying a
schedule of ratings that represent, as far as can practically
be determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic
codes identify the various disabilities.
The veteran's entire history is reviewed when making
disability evaluations. See generally 38 C.F.R. 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, in
Fenderson, the Court noted an important distinction between
an appeal involving the veteran's disagreement with the
initial rating assigned at the time a disability is service
connected. Where entitlement to compensation already has
been established and an increase in the disability rating is
at issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). However, where the question for consideration is the
propriety of the initial evaluation assigned, evaluation of
the medical evidence since the grant of service connection
and consideration of the appropriateness of "staged rating"
(i.e., assignment of different ratings for distinct periods
of time, based on the facts found) is required. See
Fenderson, 12 Vet. App. at 126.
The RO has assigned an initial 30 percent disabling, under
38 C.F.R. § 4.130, Diagnostic Code 9411. However, a General
Rating formula for evaluating psychiatric impairment other
than eating disorders contains the actual rating criteria for
evaluating the veteran's disability.
Under that formula, a 30 percent rating is assigned when
there is 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).
A 50 percent rating is assigned when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short-and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
A 70 percent evaluation is warranted for occupational and
social impairment with deficiencies in most areas, such as
work, school, family relationships, 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 ability to function
independently, appropriately and effectively; impaired
impulse control (such as unprovoked irritability with periods
of violence); spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (including work or a work-like setting); and
inability to establish and maintain effective relationships.
A 100 percent evaluation is warranted for total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions; grossly inappropriate behavior; persistent danger
of hurting self or others; intermittent ability to perform
activities of daily living (including maintenance of minimal
personal hygiene); disorientation to time or place; and
memory loss for names of closes relatives, own occupation, or
own name.
Considering the medical evidence of record in light of the
above-noted criteria, the Board finds that since the July
2002 effective date of the grant of service connection, the
symptoms associated with the veteran's PTSD have been
consistent with the criteria for no more than the currently
assigned 30 percent evaluation.
The medical evidence of record reflects that the veteran's
PTSD has been characterized, primarily, by intrusive
recollections from service in Vietnam, anxiety (including
social anxiety in public places), possible passive suicidal
ideation, though with no reported intent, minor difficulties
in concentration, low energy level, and difficulty in
maintaining social relationships other than with family
members. The record also reflects that on VA examination in
October 2002, approximately three months after the July 2002
effective date of the grant of service connection for PTSD,
the examiner specifically diagnosed PTSD in remission due to
the effectiveness of medication, and also noted that the
veteran did not at that time appear to have met all of the
criteria for a full diagnosis of PTSD. It was further noted
that the veteran maintained a high level of social activity
and strong verbal skills, and that overall he appeared to be
functioning well.
Additionally, the VA examiner's September 2003 supplemental
opinion and report of a February 2004 follow-up psychiatric
examination reflect that this psychiatrist, in the course of
his review of the veteran's claims file, has taken into
consideration any additional evidence that might initially
appear to suggest the veteran had more serious psychiatric
symptoms-specifically, the VA outpatient treatment reports
reflecting the veteran's subjective report of his psychiatric
history, and the January 2003 private psychiatrist's report-
and while the examiner's assessment of the veteran's
psychiatric condition has been updated to reflect a confirmed
diagnosis of PTSD (with a lower assigned GAF of 60, as
discussed in greater detail below), his overall portrayal of
the veteran's psychiatric disability does not indicate a
significantly higher degree of severity than that previously
noted. In his September 2003 supplemental opinion, the
examiner noted that the veteran's psychiatric symptoms
remained in remission due to the effectiveness of his
medication, that these symptoms appeared to be transient
reactions to psychosocial stressors unrelated to PTSD, and
that the veteran's impairment in employment appeared to be
due to alcohol abuse and dependence, and not his PTSD. The
report of the February 2004 examination reflects that the
veteran reported increased difficulties in maintaining
friendships, and that the veteran may have developed a
diazepam dependence secondary to his PTSD symptoms; it was
further noted, however, that the veteran's speech continued
to be normal, his mood was euthymic and affect was
appropriate, his thought process was logical and goal-
directed, and there was no indication of any obsessions,
hallucinations, or delusions.
The Board finds that these symptoms are reflective of
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks, the level of impairment
contemplated in the currently assigned 30 percent disability
rating. However, the symptoms associated with the veteran's
PTSD have not at any point met the criteria for at least the
next higher, 50 percent, evaluation.
As noted above, a 50 percent evaluation requires occupational
and social impairment with reduced reliability and
productivity due to certain symptoms; however, the Board
finds that those delineated symptoms are not characteristics
of the veteran's disability. Specifically, the veteran has
not been found to have a flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; or difficulty in understanding complex
commands. The veteran has also not been shown to have any
significant 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 motivations and mood; or difficulty
in establishing and maintaining effective work and social
relationships. While the February 2004 examiner has noted
that the veteran has recently experienced some difficulties
maintaining friendships, there is no indication that he is
unable to maintain social relationships, and the veteran
himself has related that at times he prefers to be alone.
The veteran additionally appears to have good relationships
with family members. Also, while the veteran has reported to
the February 2004 examiner having had some passive suicidal
ideation, the veteran further stated that he would never
attempt suicide. There are no other medical findings from
any other time period referring to instances of active or
passive suicidal ideation. Rather, the extent and severity
of the anxiety, sleep impairment, loss of concentration, and
other symptoms suffered by the veteran in this case, are more
characteristic of the criteria for the 30 percent rating.
Hence, the Board finds that the veteran's symptoms more
closely approximate the criteria for a 30 percent evaluation.
The Board also emphasizes that the GAF scores assigned
throughout the time period pertinent to the instant claim for
increase warrant assignment of no more than the current 30
percent rating. According to the Fourth Edition of the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV), a GAF is a scale
reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness." There is no question that the GAF score and the
interpretations of the score are important considerations in
rating a psychiatric disability. See e.g., Richard v. Brown,
9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App.
240 (1995). However, the GAF scores assigned in a case, like
an examiner's assessment of the severity of a condition, are
not dispositive of the evaluation issue; rather, they must be
considered in light of the actual symptoms of the veteran's
disorder (which provide the primary basis for the rating
assigned). See 38 C.F.R. § 4.126(a).
The Board notes that a VA social worker that treated the
veteran in March 2002 assigned a GAF score of 50, and also
that a private psychiatrist who evaluated the veteran in
January 2003 assigned a score of 35. Under the DSM-IV, a GAF
score between 31 and 40 suggests that a psychiatric
disability is manifested by some impairment in reality
testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) or major impairment in several areas,
such as work or school, family relations, judgment, thinking,
or mood (e.g., depressed man avoids friends, neglects family,
and is unable to work). A GAF score of 41 to 50 is
indicative of serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) or serious
impairment in social occupational or social functioning.
The Board points out, however, that each of these assigned
GAF scores (the March 2002 social worker's score assigned in
the 41 to 50 range, and the January 2003 psychiatrist's score
in the 31 to 40 range) appear to indicate a greater degree of
psychiatric impairment than is objectively reflected in the
veteran's treatment reports, to include those records for the
timeframe in which the scores were assigned. The veteran's
treatment records (from both VA and private medical
providers) include no evidence of suicidal ideation, speech
that is at times illogical or irrelevant, or impairment in
reality testing, symptoms that, per the DSM-IV, are generally
indicative of such a GAF between 31 and 40. Similarly, there
is no evidence of severe obsessional rituals, frequent
shoplifting, absence of social relationships, or inability to
maintain employment, symptoms that generally correspond to a
GAF between 41 and 50. Also, the veteran has not had many
friends, but has still been involved with his family. In
view of the veteran's actual psychiatric symptoms, as well as
the more detailed discussion of the veteran's symptoms noted
above, the Board finds that the GAF scores assigned in the 41
to 50 range, and in the 31 to 40 range, respectively, do not
provide any basis for assignment of a higher rating. As the
October 2002 examiner later indicated in his September 2003
supplemental opinion, the GAF of 35 assigned by the January
2003 private psychiatrist suggested that the veteran was
unable to take care of himself or anyone else, when, in fact,
the clinical information in the veteran's case showed
otherwise.
Rather, the Board points out that the scores assigned in this
case by the VA examiner of 80 in October 2002, and 60 in
February 2004 (in connection with the most detailed and
thorough psychiatric evaluations of record in connection with
the veteran's claim for increase), as well as the veteran's
treating psychiatrist at the Manchester VAMC, of between 54
and 60, and the VA psychiatrist at the Tampa VAMC, of 52 in
March 2002, each appear to be more reflective of the
veteran's actual level of psychiatric impairment. According
to the DSM-IV, a GAF score between 51 and 60 is indicative of
moderate symptoms (e.g., flat affect and circumstantial
speech, and occasional panic attacks) or moderate difficulty
in social, occupational, or school functioning. These scores
appear to correspond to the level of impairment contemplated
in the currently assigned 30 percent evaluation.
Thus, the Board finds the record presents no basis for
assignment of more than the current 30 percent schedular
evaluation at any point since the July 18, 2002 effective
date of the grant of service connection for PTSD. Moreover,
as the criteria for the next higher, 50 percent evaluation
have not been met, it follows that the criteria for the next
higher 70 percent evaluation likewise are not met.
Finally, the Board points out that there is no showing that
the veteran's PTSD has, at any point since the effective date
of the grant of service connection, reflected so exceptional
or so unusual a disability picture as to warrant the
assignment of any higher evaluation on an extra-schedular
basis. See 38 C.F.R. § 3.321(b)(1) (cited to in the October
2004 SSOC). In this regard, the Board notes that the
disability is not objectively shown to markedly interfere
with employment (i.e., beyond that contemplated in the
assigned rating). The January 2003 private psychiatrist
evaluating the veteran has opined that the veteran was
"totally disabled" due to his psychiatric condition,
although this psychiatrist did not express any actual
findings regarding the effect of the veteran's PTSD upon
employability. SSA disability records also document that the
veteran is receiving disability compensation for an anxiety
disorder as well as an affective (mood) disorder, but do not
specifically relate his disability compensation to PTSD.
Moreover, the VA psychiatrist who provided the September 2003
medical opinion, based on a review of the medical evidence of
record at that time (including the private treatment and SSA
records), determined that the veteran's primary impediment in
working appeared to be his alcohol abuse and dependence, not
PTSD, and further, that the veteran could likely return to
work if he could obtain control over his alcohol dependence.
Aside from the question of employability, the veteran's
service-connected PTSD has also not been shown to warrant
frequent periods of hospitalization, or to otherwise render
impractical the application of the regular schedular
standards. In the absence of evidence of any of the factors
outlined above, the criteria for invoking the procedures set
forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v.
Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet.
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
Under these circumstances, the Board must conclude that
staged rating, pursuant to Fenderson, is not warranted, and
that the claim for an initial evaluation in excess of 30
percent for PTSD must be denied. In reaching this
conclusion, the Board has considered the benefit-of-the-doubt
doctrine; however, as the preponderance of the evidence is
against the veteran's claim, that doctrine is not applicable
in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
An initial evaluation in excess of 30 percent for PTSD is
denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs