Citation Nr: 18147244 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 14-36 765 DATE: November 5, 2018 ORDER Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder, diagnosed as post-traumatic stress disorder, with adjustment disorder and major depressive disorder and (PTSD) is denied. FINDING OF FACT During the period on appeal, the Veteran’s PTSD has been characterized by occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for (PTSD) have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to March 1973. In an appellate brief dated September 2018, the Veteran’s representative argues for an increase based, in part, on a sharp increase in GAF scores from January 2012 to August 2013. However, given that this appeal was certified to the Board after August 4, 2014, the DSM-V applies; consequently, GAF scores are not discussed in connection with this appeal. See Golden v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 202, (Vet. App. February 23, 2018). Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder, diagnosed as post-traumatic stress disorder, with adjustment disorder and major depressive disorder and (PTSD) The Veteran is presently service connected for post-traumatic stress disorder (PTSD) with depression which, at the time he submitted his claim, he was rated at 50 percent disabling. He is claiming entitlement to a higher rating for that disability. Specifically, he claims in a writing dated December 19, 2011, that his symptoms worsened after the RO’s most recent rating decision dated June 2009. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. The Veteran’s psychiatric disorder is rated under 38 C.F.R. 4.130, Diagnostic Code 9411. Under the applicable diagnostic criteria, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. 4.130, DC 9411. 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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; and/or memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall 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 examination. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Based on the evidence of record, the Board determines that a rating in excess of 50 percent for the period on appeal is not warranted. Specifically, the record indicates that the Veteran’s symptoms do not rise to the level of occupational and social impairment with deficiencies in most areas. Initially, the Board notes that the Veteran’s January 2012 VA examiner attributed only approximately 25 percent of his symptoms, the other 75 percent caused by adjustment disorder. However, as each of these disorders is covered by the Diagnostic Code, their discussion is included as part of the Veteran’s acquired psychiatric disability. Throughout this period, the Veteran appeared well-groomed and pleasant. For instance, a mental status examination dated July 2011, November 2011, November 2013, as well as a mental health note dated April 2014, noted a casual appearance with good to appropriate hygiene. The Veteran’s affect was mostly congruent, despite a letter from a private counselor, dated August 2013, indicating a flattened affect. He even smiled at times at a mental status examination in August 2012. The Veteran’s speech was appropriate and within normal limits, according to medical notes from January 2011, July 2011, November 2011, August 2012, March 2013, January 2014, and June 2014. Finally, during this period, the Veteran endorsed having been sober and denied the use of alcohol, except for an August 2012 screen admitting monthly alcohol use in the previous year. The above evidence shows that the Veteran’s mood was not productive of a state of near-continuous panic. While the Veteran suffered from disturbances of motivation and mood, these disturbances are adequately reflected in his current 50 percent rating for this period. At a January 2011 evaluation, the Veteran endorsed minimal hypervigilance, as well as recurrent flashbacks and survivor’s guilt. However, his mental status examination showed a calm, alert, and good mood. The Veteran endorsed a good mood in July 2011 evaluations. In a November 2011 mental health follow up note, the Veteran mentioned a decline in mood and increase in general irritability; this was especially acute around family members. At a January 2012 VA examination, the Veteran reported a more edgy and nervous mood, with bouts of quick anger occurring three to four times per week. His depression seemed tied to sleep problems and anxiety. The examiner also stated that the veteran was not regularly re-experiencing trauma related events, but that his symptoms appeared more related to his family and health issues - with some worsening of PTSD symptoms. By the time of his May 2012 follow up note, the Veteran mentioned feeling restless. Similarly, he reported in August 2012 having good days and bad, and wanting to “take a break from everything.” Importantly, however, he denied suicidal or homicidal ideations. Unfortunately, the Veteran experienced the death of a close family member, resulting in sadness, depression, and grief documented in a note dated October 2012. Nonetheless, the Veteran presented with a good mood in a March 2013 mental status examination. His mood fluctuated slightly during the rest of the appeal period, expressing itself mainly with bouts of “shutting down.” Further, he reported panic attacks at least three to four times a week to an examiner in August 2013. However, by his July 2014 Compensation and Pension examination, the Veteran denied mania signs and symptoms. Also, examiners attributed some of the Veteran’s mood fluctuations to back pain. While the Veteran reported livable depression and anxiety, the evidence does not show that the Veteran had totally lost impulse control or had continuous depression or panic. In fact, the Veteran described himself as “not an angry person.” Despite his struggles with sadness and depression, the Veteran functioned independently during this period. He also showed the ability to make sound decisions, throughout the appeal period. As noted in the Veteran’s most recent July 2014 VA examination, the Veteran is competent to handle his financial affairs. Accordingly, his symptomatology does not warrant a 70 percent rating for this period due to mood disturbances. While the Veteran experienced sleep disturbances such as nightmares and night sweats during the period on appeal, these symptoms are contemplated by DC 9411. According to a letter dated August 2013 from the Veteran’s counselor, the nightmares would continue to haunt him while he was awake. They also tended to wake him fairly early, and he would have trouble going back to sleep. Throughout the period on appeal, the Veteran reported night sweats ranging from nightly in July 2011 to several times a week, resulting in awakening at night and having to change clothing. Sleep disturbances such as those described above are not uncommon with PTSD, and do not warrant a 70 percent rating. Similarly, the Veteran did not endorse problems with concentration or memory, nor homicidal ideations or symptoms of delusions or hallucinations. While the Veteran admits to passive suicidal thoughts in medical records dated October 2012 and October 2013, these thoughts did not develop into active plans. Moreover, the frequency and intensity of these thoughts did not approach a level meriting a 70 percent rating. Indeed, the Veteran collaborated with a therapist to produce several safety plans – for example, one dated April 2014. Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 50 percent. For example, his counselor, L.A., submitted a letter dated August 2013 in which obsessive ritualistic behavior is mentioned, the interruption of which produces anger. L.A. also mentions general periods of violence, without indicating specific incidents. Also, the Veteran has endorsed panic attacks and exhibited difficulty in adapting to stressful situations. However, these symptoms do not reach the degree required to demonstrate occupational and social impairment with deficiencies in most areas. The criteria for the next-higher 70 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. Indeed, many of these objective symptoms, such as illogical, obscure, or irrelevant speech, have not been demonstrated. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as grossly inappropriate behavior and memory loss, to include social and occupational inadaptability. In this regard, it is clear that the Veteran’s disorder impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 50 percent is warranted. Specifically, the Veteran had been in a stable and loving marriage for over almost fifty years. The Veteran mentioned a son with a crack-cocaine addiction who is in and out of prison, and a daughter with muscular dystrophy, both of whom are dependent on the Veteran and his wife. Nonetheless, the Veteran still retained the capacity for love and closeness, as evidenced by the distress caused by his son’s situation and the passing of his daughter and his uncle in late 2012. As for friends, the Veteran reports remaining relatively isolated, except for attending events such as Sunday church. In fact, the Veteran attested to making himself available to those at Church who needs help. Notably, however, the Veteran avoids funerals due to a friend whose death he witnessed while serving. While the Veteran had significant social impairment during this period due to his PTSD, it does not rise to the level of impairment with deficiencies in most areas, warranting a rating in excess of 50 percent. Occupationally, the Veteran has reported stable employment and positive overall performance, with no write-ups or reprimands as of his last VA examination. Thus, the evidence does not warrant an increased rating. Given this evidence, the Board determines that the Veteran’s psychiatric symptoms most nearly approximate the symptoms listed for a 50 percent rating. Specifically, his psychiatric disability was primarily manifested by disturbances of motivation and mood, and sleep disturbances. As the frequency, duration and severity of the Veteran’s psychiatric symptoms demonstrate occupational and social impairment with reduced reliability and productivity for the period on appeal, a 50 percent evaluation is warranted for the Veteran’s acquired psychiatric disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his PTSD is worse than the rating he currently receives. Specifically, the Veteran reports ritualistic behavior, flashbacks, and difficulty adapting to stressful circumstances. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a rating in excess of 70 percent rating is warranted for this period. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board’s analysis. As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also 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). Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, nor does the evidence suggest, unemployability during the period on appeal. Based on the evidence of record, the Board determines that an increased rating for the Veteran’s PTSD is not warranted. As such, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel