Citation Nr: 18144678 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-31 233 DATE: October 25, 2018 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD), associated with substance abuse, is denied. FINDING OF FACT Throughout the period on appeal, the weight of the evidence supports that the Veteran has occupational and social impairment in most areas due to impaired impulse control with increased periods of unprovoked irritability, increased isolative and avoidance behaviors, hypervigilance, and anxiety, but that he has no symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place to support total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased rating in excess of 70 percent for the Veteran’s service connected PTSD, associated with substance abuse, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to January 1970. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2015 rating decision issued by the Department of Veterans Affairs (VA). See February 2015 rating decision; January 2016 Notice of Disagreement (NOD); April 2016 Statement of the Case (SOC); June 2016 Substantive Appeal (VA Form 9). The Board acknowledges that additional evidence was received while the appeal was pending, including VA and private medical treatment records, but the additional evidence is either duplicative of evidence already in the claims file or not pertinent to the Veteran’s current impairment due to his PTSD. Duties to notify and assist. As an initial matter, the Board finds that the VA has satisfied its duty to assist the Veteran in developing his claim for a rating in excess of 70 percent for his service connected PTSD, associated with substance abuse. The Veteran and his representative contend that the evidence warrants a more thorough and contemporaneous VA examination to determine the severity of the Veteran’s claimed condition. See June 2016 Substantive Appeal; May 2018 Appellate Brief. The Court has held that VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). In this case, as discussed further below, the Veteran was afforded a VA examination in January 2015, and another in December 2015. The Board finds both VA examiners’ opinions probative because they are consistent with the overall evidence, including the Veteran’s lay statements about having anger and sleep problems. Therefore, the Board finds the VA examinations of record are adequate to adjudicate the Veteran’s claim and that no further examination is necessary. Entitlement to a rating in excess of 70 percent for the Veteran’s service connected PTSD, associated with substance abuse. The Veteran asserts that he wakes up in the middle of the night and does not fall back asleep until late at night or in the morning. See November 2015 VA Form 21-0820. The Veteran also asserts his PTSD symptoms do not surface regularly, that his anger is there all the time, and he took and completed an anger management course. See June 2016 Substantive Appeal. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See 38 C.F.R. § 4.130; Mauerhan v. Principi, 16 Vet. App. 436 (2002) The Veteran’s service connected PTSD, associated with substance abuse, is evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, and currently rated at 70 percent, effective September 13, 2011. Under the General Rating Formula for Mental Disorder, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech 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. See 38 C.F.R. § 4.130. The next higher rating is 100 percent, which is warranted for 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. In this case, the Board determines that the occupational and social impairment resulting from the Veteran’s PTSD, associated with substance abuse, more closely approximates a 70 percent rating since at least July 24, 2015. The Board finds the Veteran’s lay statements about having trouble sleeping and feeling angry all the time credible. The Veteran’s lay statements are consistent with his reported symptoms to the January 2015 VA examiner that he has impaired impulse control with increased periods of unprovoked irritability and chronic sleep impairment. The Board also considered that the Veteran completed an anger management course in evaluating his PTSD severity. However, while Veteran is competent to report his psychiatric symptoms, he is not competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, the Board gives greater probative weight is given to the two VA examiners’ opinions. In January 2015, a VA examining psychologist opined the Veteran had occupational and social impairment in most areas, such as work, school, and family relations. The VA examiner found symptoms that include anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, and impaired impulse control. Id. The VA examiner observed that the Veteran had psychomotor slowing and constricted affect with minimal reactivity. However, the VA examiner also found the Veteran was neatly dressed, cooperative, and showed no evidence of tangential thought process, loose associations, or psychotic symptoms. Id. The VA examiner’s findings and opinion support less than total occupational and social impairment. The Veteran was afforded another VA examination in December 2015, in which a different VA examiner also opined that the Veteran had occupational and social impairment in most areas, but not total impairment. The VA examiner noted that the Veteran has had interpersonal conflicts with supervisors and colleagues in the past and a chronic sleep impairment associated with his PTSD, but has positive social supports, enjoys volunteering and riding his motorcycle, and that his symptoms would not preclude employment. Id. The VA examiner also observed that the Veteran appeared depressed, but was fully alert and oriented, denied suicidal and homicidal ideation, and appeared to be a reliable historian. Id. The VA examiners are medical professionals who are qualified to evaluate the Veteran’s PTSD symptoms. Their findings are consistent with Veteran’s lay statement about his anger and sleep problems. In addition, while the medical evidence of record shows a lack of current psychiatric treatment, VA treatment notes for his physical ailments do note that the Veteran engages in leisure activities such as riding a motorcycle and is independent in his activities of daily living. See December 2014 VA treatment records. When taken together and considered with the overall lay and medical evidence, the VA examiners’ opinions are entitled to probative weight. Accordingly, the Board finds that, while the evidence supports that the Veteran has occupational and social impairment in most areas, the preponderance of the evidence is against finding total occupational and social impairment, and that the Veteran’s symptoms more closely approximates a 70 percent rating. The benefit of the doubt rule does not apply as the preponderance of the evidence is against the claim for a rating in excess of 70 percent. See U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel