Citation Nr: 18146437 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-32 469 DATE: November 1, 2018 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated as 50 percent disabling prior to May 21, 2015, and as 70 percent disabling thereafter, is denied. FINDINGS OF FACT 1. Prior to May 21, 2015, the Veteran’s PTSD resulted in occupational and social impairment manifested by, at worst, complaints of depression, anxiety, anger, difficulty sleeping, and difficulty establishing and maintaining effective relationships most nearly approximating the 50 percent disability rating. 2. Beginning on May 21, 2015, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in several areas due to symptoms of severity, frequency, and duration most nearly approximating the 70 percent disability rating, but not total social and occupational impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent prior to May 21, 2015 and in excess of 70 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130 Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1966 to October 1969. This matter comes before the Board on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Increased Rating Disability ratings are determined by applying the criteria set forth in 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. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a) (2016). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The symptoms listed in DC 9411 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 Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran, however, may only qualify for a given disability rating “by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (“Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the ‘frequency, severity, and duration’ of a Veteran’s symptoms must play an important role in determining his disability level.”). A 70 percent rating is warranted when 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; 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when 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. 38 C.F.R. § 4.130, DC 9411. Entitlement to an increased rating for PTSD, rated as 50 percent disabling prior to May 21, 2015, and as 70 percent disabling thereafter Prior to May 21, 2015 The Veteran contends that he is entitled to a higher rating for his service-connected PTSD. Pursuant to DC 9411, a 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Upon review of the record evidence, the Board finds that prior to May 21, 2015, the Veteran’s PTSD has more nearly approximated symptoms contemplated by a 50 percent rating. The pertinent evidence of record during the rating period includes VA treatment records dated from September 2011 to May 2013, and a September 2012 VA PTSD examination report. A review of the clinical evidence of record indicated that the Veteran endorsed depression, anxiety, hypervigilance, irritability, and difficulty establishing and maintaining effective relationships, among other symptoms, prior to May 21, 2015. Overall, the Veteran’s PTSD symptoms did not result in occupational and social impairment with deficiencies in most areas sufficient enough to warrant a 70 percent rating. On VA outpatient treatment in September 2011, the Veteran was diagnosed with PTSD and dysthymic disorder. He presented appropriately groomed, friendly, cooperative and made good eye contact. His affect was appropriate and his mood was euthymic. His speech was clear and there was no evidence of any language problems. His thoughts were logical/coherent and his judgment was normal. The Veteran did not report any memory problems and denied any suicidal/homicidal ideation. In December 2011, he had a positive depression screen. A February 2012 VA treatment record indicated that the Veteran presented appropriately groomed and made good eye contact; however, he appeared guarded during the treatment session. His affect was appropriate and his mood was anxious. His speech was clear and there was no evidence of any language problems. His thoughts were logical/coherent and his judgment was normal. He did not report any memory problems and denied any suicidal/homicidal ideation. The Veteran did endorse relationship problems. In September 2012, the Veteran was afforded a VA PTSD examination. He was diagnosed with PTSD and alcohol dependence (in remission). His PTSD was best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. His symptoms included: anxiety; suspiciousness; chronic sleep impairment and an inability to establish and maintain effective relationships. The Veteran reported that he disliked crowds and had “road rage”. He was deemed capable of managing his financial affairs. Again, during an October 2012 treatment session, the Veteran presented appropriately groomed, alert, cooperative, and made good eye contact. His speech was clear and he did not report any memory problems. His thoughts were logical/coherent and his judgment was appropriate. He denied suicidal/homicidal ideations and did not report any audio/visual hallucinations. In the examiner’s judgment, the Veteran was not a danger to himself or others. The Veteran endorsed anxiety about diagnostic findings of an elevated prostate-specific antigen (PSA) level. On VA outpatient treatment in May 2013, the Veteran again presented appropriately groomed, alert, cooperative, and made good eye contact. His speech was clear and he did not report any memory problems. His thoughts were logical/coherent and his judgment was appropriate. He continued to deny any suicidal/homicidal ideations and did not report any audio/visual hallucinations. The Veteran was not deemed a danger to himself or others. He endorsed being anxious about a scheduled prostate related biopsy. After carefully reviewing the evidence of record, the Board finds that prior to May 21, 2015, the frequency, severity and duration of the Veteran’s PTSD symptoms were more closely approximate to symptoms contemplated by a 50 rating. As such, an increased rating is not warranted in the current appeal. In so finding, the Board considers the VA treatment records which indicate that the Veteran regularly presented appropriately groomed, alert and oriented to person, time and place for general medical and mental health treatment sessions. The Veteran’s speech was consistently clear, his thoughts were logical/coherent and his judgment was appropriate. The Veteran denied any suicidal/homicidal ideation or audio/visual hallucinations. He was not deemed a threat or danger to himself or others. The record evidence also indicates that the Veteran did not endorse panic attacks or obsessional rituals that interfered with his routine activities as contemplated by a 70 percent rating. Also, his depression did not reportedly affect his ability to function independently, appropriately or effectively. Despite the September 2012 VA PTSD examination report, which indicated that the Veteran had “road rage”; there is no indication in the record evidence that the Veteran engaged in grossly inappropriate behavior during a “road rage” episode, or otherwise, that warrants a 100 percent rating. Even so, the September 2012 PTSD examination indicated that the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior self-care and conversation. The Veteran’s overall occupational and social impairment did not cause deficiencies in most areas warranting a 70 percent rating. In fact, the September 2012 examination indicated that the Veteran generally functioned in a satisfactory manner. Although the October 2012 and May 2013 VA treatment records indicated that the Veteran endorsed anxiety about his prostate-related health problems, the frequency, severity and duration of his anxiety in this instance, is contemplated by his 50 percent rating for PTSD. The same is true of his reported relationship problems as evidenced by the February 2012 VA treatment record. All in all, the Veteran’s difficulty in establishing and maintaining effective work or social relationships is contemplated by his 50 percent rating. He does retain the ability to have effective relationships as detailed further below notwithstanding the September 2012 notation. Having carefully considered the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran’s PTSD is appropriately evaluated as 50 percent disabling prior to May 21, 2015. As such, the Veteran’s lay contentions are not borne out by the more probative medical testing and psychological evaluations conducted to evaluate the Veteran’s complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests and/or assessments for a determination of the type and degree of the impairment associated with the Veteran’s complaints. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Board finds that the preponderance of the evidence is against the Veteran’s increased rating claim for an evaluation in excess of 50 percent prior to May 21, 2015. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Beginning May 21, 2015 For the period beginning on May 21, 2015, the Veteran contends that he is entitled to a total disability rating for his service-connected PTSD. Pursuant to DC 9411, a 100 percent rating is warranted for total occupational and social impairment. Upon review of the record evidence, the Board finds that beginning on May 21, 2015, the Veteran’s PTSD does not more nearly approximate symptoms contemplated by a 100 percent rating. The pertinent evidence of record during the rating period includes VA treatment records dated from May 2015 to June 2018, and a May 21, 2015 VA PTSD examination report. A review of the clinical evidence of record indicated that the Veteran endorsed anxiety, suspiciousness, panic attacks, irritability, isolative behavior, sleep problems, and difficulty establishing and maintaining relationships, among other symptoms, beginning on May 21, 2015. Overall, the Veteran’s PTSD symptoms did not render him totally impaired beginning on May 21, 2015. On May 21, 2015, VA afforded the Veteran a PTSD examination. His PTSD and history of alcohol abuse (in remission) diagnoses were noted. The Veteran’s PTSD was best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routing behavior, self-care and conversation. His symptoms included: anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; difficulty in adapting to stressful circumstances, including work or a worklike setting and an inability to establish and maintain effective relationships. The Veteran reported that he had a panic attack traveling to the VA medical center for the examination. He reported relationship problems in that he found it difficult maintaining romantic relationships. The Veteran reportedly “repelled romantic relationships” despite wanting to be in a relationship. According to the Veteran, he would avoid his brother and became isolative when his brother visited. The Veteran reported that he avoided noises and that the medication Trazadone “doesn’t work well”. The examiner deemed him capable of managing his financial affairs. During VA outpatient treatment on May 28, 2015, the Veteran presented groomed, alert and oriented to person, place and time. His thought process was logical, organized and coherent; his insight was fair. The Veteran’s affect appeared calm and cooperative. He denied any suicidal/homicidal ideation. The Veteran endorsed panic attacks, insomnia, isolation and difficulty maintaining relationships. He also reported that he disliked crowds and was anxious about being out in public. A June 2015 VA treatment note indicated that again, the Veteran presented groomed, alert and oriented to person, place and time. His thought process was logical, organized and coherent and his insight was fair. He denied any suicidal/homicidal ideation. The Veteran reportedly had a good relationship with his girlfriend. He expressed interest in beginning cognitive processing therapy; but, did not want to attend weekly sessions. An August 2015 VA treatment note indicated that the Veteran began attending recurrent mental health treatment sessions. During this first session, the Veteran presented alert and oriented to person, place, time. He continued denying any suicidal/homicidal ideation. A March 2017 VA treatment note indicated that the Veteran declined a referral for mental health evaluation. The examiner remarked that the Veteran’s PTSD symptoms were controlled with Zoloft. Again, he denied suicidal ideation and was not deemed a danger to himself or others. A June 2018 VA treatment note indicated that the Veteran continued to deny suicidal/homicidal ideation and feelings of hopelessness. After reviewing the Veteran’s depression and/or PTSD screen results, the examiner declined further mental health intervention. In light of the foregoing, the Board finds that beginning on May 21, 2015, the Veteran’s PTSD has not more nearly approximated the criteria for a higher rating of 100 percent under DC 9411. The May 21, 2015 VA PTSD examination report and VA mental health treatment records consistently indicated that the Veteran’s service-connected PTSD manifested as occupational and social impairment with reduced reliability and productivity with symptoms such as depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work life setting; and feelings of guilt or worthlessness, the type, frequency, severity, and duration of which does not more nearly approximate symptoms that are contemplated by a 100 percent evaluation. The Veteran’s symptoms, as found in his VA treatment records, in combination with the results of his May 21, 2015 VA PTSD examination do not indicate that the Veteran is totally impaired. Namely, the May 21, 2015 VA PTSD examination indicated that the Veteran generally functioned satisfactorily, with normal routine behavior, self-care and conversation. The majority of the VA treatment records indicated that the Veteran had intact thought processes, normal speech, appropriate affect, and the ability to perform activities of daily living, including personal hygiene. His memory was intact, he did not exhibit grossly inappropriate behavior, and was not deemed a danger or threat to himself or others. Notably, he was deemed capable of managing his financial affairs. At each VA mental health evaluation, the Veteran presented well-groomed, alert, cooperative and engaged. On VA outpatient treatment from May 2015 through June 2018, the Veteran presented with intact thought processes, denied suicidal/homicidal ideation and audio/visual hallucinations. His speech was routinely normal, his affect was appropriate and for the majority of the time, his mood was calm. Moreover, the July 2015 VA treatment note indicated that the Veteran was interested in starting cognitive processing therapy. In fact, an August 2015 treatment note indicated that he even began attending recurrent treatment sessions to help manage his PTSD. Despite endorsing difficulty establishing and maintaining relationships, and that he avoided his brother whenever he visited, the July 2015 VA treatment noted indicated that the Veteran endorsed “a good relationship” with his girlfriend. The March 2017 VA examiner remarked that the Veteran’s PTSD symptoms were controlled with the medication, Zoloft. Most crucially, the June 2018 VA treatment note indicated that after reviewing the results of the Veteran’s depression and/or PTSD screens, the examiner declined further mental health intervention. Again, the VA examiners consistently determined that the Veteran was not a danger or threat to himself or others. Cumulatively, the medical evidence of record indicates that beginning on May 21, 2015 the Veteran’s PTSD did not render him totally disabled. With regards to the Veteran’s assertions, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno, supra. The Veteran is competent to describe current symptoms, such as depression, anxiety, irritability, decreased social interactions, etc. However, as to the severity of the Veteran’s PTSD the Board finds such subject matter to be complex in nature and beyond the competence of a lay person. See Woehlaert, supra. Thus, the greatest weight is placed on the examination findings in regard to the type and degree of the Veteran’s impairment. Having carefully considered the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that beginning on May 21, 2015, the Veteran’s PTSD is not 100 percent disabling. As such, the Veteran’s lay contentions are not borne out by the more probative medical testing and psychological evaluations conducted to evaluate the Veteran’s complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests and/or assessments for a determination of the type and degree of the impairment associated with the Veteran’s complaints. As such, the Board finds that the preponderance of the evidence is against the Veteran’s increased rating claim for an evaluation in excess of 70 percent beginning on May 21, 2015. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel