Citation Nr: 18148534 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-29 543 DATE: November 7, 2018 ORDER An initial disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD causes depressed mood, anxiety, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, auditory and visual hallucinations, sleep impairment, hypervigilance, short-term memory problems, irritability, and difficulty in adapting to stressful circumstances, including work or a worklike setting. CONCLUSION OF LAW The criteria for an initial rating higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1973 to October 1976 and from November 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Winston-Salem, North Carolina, Regional Office (RO). 1. PTSD Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The Veteran is currently rated at 50 percent for PTSD. A 50 percent evaluation requires 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such 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 work-like setting), and an inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The U.S. Court of Appeals for the Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is not a credible historian. In August 2014, the Veteran reported to his private psychiatrist that he was present at the Khobar Towers bombing and that he “felt it shake during the explosion.” See August 2014 Medical Treatment Records, Dr. H.B.. He further reported that, after the explosion, his platoon was taken to a remote location in the desert, which he believed to be a greater risk to his safety. Id. The Khobar Towers bombing occurred in June 1996. See Linda Kozaryn, DoD Releases Report on Khobar Towers Bombing, American Forces Press Release (9/18/96), http://archive.defense.gov/news/newsarticle.aspx?id=41452. However, there is no evidence that the Veteran was present at the Khobar Towers bombing or even in any branch or component of the military at that time. At a March 2015 VA examination, the Veteran was administered a symptom validity test for the detection of symptom exaggeration and endorsement of atypical symptoms patterns across a variety of settings. The VA examiner concluded that the Veteran “endorsed a high frequency of symptoms that are highly atypical and inconsistent with patients with genuine psychiatric disorders.” See March 2015 PTSD Disability Benefits Questionnaire. The Veteran’s statements in support of his claims are not credible and entitled to no probative value because they have shown to be demonstrably false by other competent and credible evidence. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board is entitled to discount the credibility of evidence considering its own inherent characteristics and its relationship to other items of evidence). Effective August 7, 2014, Veteran has been in receipt of a 50 percent disability rating for PTSD. While it appears that the diagnosis and the award of service connection may have been based on the Veteran’s inaccurate reporting and demonstrated symptom exaggeration, the Veteran was also diagnosed in May 2015 with a depressive disorder linked to “stressful events in service.” June 2014 VA treatment records indicate that the Veteran screened positive for PTSD. The Veteran reported experiencing flashbacks, nightmares, anger, irritability, avoidance, loss of interest in hobbies, and intrusive thoughts of war. The Veteran was married, employed fulltime, and had a spiritual support system, to include a pastor with whom he felt comfortable speaking. The Veteran denied suicidal and homicidal ideation, intent or plan. He presented with a sad mood and congruent affect, normal thought processing, and fair judgment, insight and impulse control. He reported that he experienced a hallucination one month prior. In August 2014, the Veteran underwent an initial psychiatric assessment with his private physician, Dr. H.J. The Veteran was employed and he reported that he worked for the same company off and on over the past ten years, as the company laid him off. He did not report that he was released from his job due to disciplinary problems, nor that he had any disciplinary problems within the previous five years. He had been married since 1984 and had “okay” relationships with his children. The Veteran reported that he had a close friend die within the prior four weeks. The Veteran stated that he experienced flashbacks and nightmares of his service in combat. He reported that he experienced panic attacks, angry outburst, was easily frustrated, less patient, isolated, hyper alert, and guarded. The Veteran reported that his concentration, memory, and focus were problematic. The physician concluded that the Veteran did not have looseness of association, no circumstantial thought, no perseveration, but that he experienced thought blocking, word searching, and delayed thought. The Veteran denied auditory, visual, and tactile hallucinations, although he reported seeing things at the edges of his sight. The Veteran denied suicidal or homicidal thought, or any self-injurious behavior. There was no paranoia or delusions. Additional private treatment records from October 2014, February 2015, and July 2015 demonstrated similar symptoms, with the exception that in October 2014, the Veteran reported some improvement in his sleep. Additional October 2014 VA treatment records indicate that the Veteran experienced flashbacks, nightmares, and sleep impairment. The Veteran had a supportive spouse, and spiritual and social support systems as well. The Veteran reported that he had been seeing a private psychiatrist for the previous two months and that he had been prescribed medication to assist with sleep. The Veteran presented with sad mood, tired affect, normal thought processing, and fair insight and impulse control. He denied self-directed violence and/or violence toward others. Although a subsequent appointment was scheduled, a November 2014 notation indicated that the Veteran preferred to see his private psychiatrist, and he cancelled his VA mental health appointment. In March 2015, the Veteran was afforded a VA examination. The examiner concluded that the Veteran experienced symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported auditory and visual hallucinations, sleep disturbances, hypervigilance, short-term memory problems, and irritability. He also reported that he did not have any current friendships and that the last time he had a friend was when he was a teenager. At the time of the examination, the Veteran was employed and had been at his then-current position for five to ten years without any disciplinary problems. The Veteran stated that when not working, he went to flea markets and the movie theater, napped, spent time with his spouse, and watched television. The Veteran was married and lived with his spouse and daughter. He stated that while he does not always speak to or get along with all his family members, he did have some positive interactions with them. He saw his mother twice per month and that there were no problems with their relationship. The VA examiner concluded that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran is competent to report mental symptoms because such requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the most probative evidence does not show the Veteran met the objective criteria for a higher scheduler rating. The Veteran experienced depressed and sad mood, some disturbances of motivation and short-term memory issues. Although he reported panic attacks, there is no indication that they were more than once a week. There is some indication that the Veteran experienced hallucinations; however, more often than not, the Veteran denied auditory, visual, or tactile hallucinations. The Veteran has been employed full-time for at least five years. He engaged in hobbies such as attending the flea market and watching television, and had positive and long-term relationships with his spouse and family members, to include his mother. There is no indication that the Veteran experienced impaired abstract thinking. The Veteran’s private physician reported the Veteran experienced symptoms such as anxiety, sleep impairment, and depressed mood, but also noted the Veteran long-term marriage and work history. The March 2015 VA examiner concluded that the Veteran experienced occupational and social impairment with reduced reliability and productivity. A 70 percent evaluation is not warranted, as such requires occupational and social impairment with deficiencies in most areas. The Veteran repeatedly denied suicidal or homicidal ideation. There is no indication that the Veteran experienced obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, impaired impulse control spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. In contrast, the Veteran has been married for approximately 24 years and has been employed for many years without disciplinary problems. Although the Veteran experienced depressed mood, the evidence is silent for near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The evidence is silent, either from a VA examiner, the Veteran’s private physician, or treatment records, that the Veteran experienced occupational and social impairment with deficiencies in most areas. As such, the preponderance of the evidence is against the granting of a rating higher than 50 percent. In arriving at the decision to deny this claim, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet, App. 49, 53 (1990). Therefore, a disability rating higher than 50 percent for PTSD is not warranted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel