Citation Nr: 18149189 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-30 674 DATE: November 9, 2018 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied.   FINDING OF FACT The Veteran’s PTSD is productive of at most occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from Jun 1968 to June 1973. This case comes from an August 2014 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 50 percent for PTSD. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. According to 38 C.F.R. § 4.130, DC 9411, a 10 percent evaluation is warranted for PTSD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent evaluation is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for PTSD where 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 rating is warranted where 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Where 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 38 C.F.R. §§ 3.102, 4.3. Analysis Through his procedural appeal documents and statements, the Veteran contends that at least an initial 70 percent rating is warranted for his PTSD. He has listed the symptoms set forth as examples for that level and states that he has such symptoms. The Board has considered the Veteran’s statements, the relevant treatment records and the two VA examinations that were conducted. The first examination was in June 2014 near the beginning of the claim. The second was in June 2016, following the grant of service connection and the Veteran’s disagreement with the initial 50 percent rating assigned. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran’s PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that his PTSD has manifested in no worse than occupational and social impairment with reduced reliability and productivity. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). That level of impairment is contemplated by the already assigned 50 percent rating. The next highest 70 percent level is not approximated and total impairment is not shown. The Board notes that VA treatment records in June 2016 reflect that the Veteran was employed in April 2014, and that he lived with, and was the primary caregiver for, his elderly mother who was noted to be in ill health. In addition, in October 2014, August 2015, and March 2016, the Veteran was reported to be alert, oriented, and cooperative. A brief loss of consciousness in March 2016 was attributed to vasovagal syncope. To the extent that the Veteran has asserted that his PTSD affects his ability to work, the June 2014 VA examination report reflects his history of having worked in a lab for approximately 25 to 30 years, noting that his departure from the workforce two years earlier was due to a respiratory disorder. The Board notes that the 50 percent rating currently assigned for PTSD is adequate to compensate for considerable loss of working time from exacerbations, if any, throughout the appeal period. 38 C.F.R. § 4.1. The Board notes that although the Veteran is competent to report his symptoms, competence and credibility are to be distinguished. In that respect, the July 2014 VA examination report notes that although the Veteran complained of always being depressed, including at the time of the examination, and of being uncomfortable around people, the examiner reported that the Veteran’s affect and presentation were incongruent with his self-report, noting that he had an appropriate and euthymic affect “(with laughing and smiling behaviors throughout)” and that he was pleasant, cooperative and personable during the entirety of the evaluation. Additionally, a determination as to occupational and social impairment due to PTSD and associated symptoms is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, his opinion as to severity lacks probative value in a medical sense. The Board notes that, although statements from family members in May 2015 were submitted in support of the Veteran’s assertion that he meets the criteria for at least a 70 percent rating, the Board does not find the lay testimony sufficient to approximate the next higher level. 38 C.F.R. § 4.7. The Board has weighed all the evidence and finds that the two VA examinations are the most persuasive and probative towards the severity level of the entirety of the appeal period. Both VA examiners, who are clinical psychologists, assessed the Veteran at the same severity level. After interviewing him, conducting a mental status examination and reviewing his history, the examiners both determined that the Veteran met the impairment level that is consistent with no more than the 50 percent level currently assigned. The June 2016 VA examination report reflects that the Veteran’s hygiene and grooming were adequate, and only mild anxiety was noted. Even with consideration of the effects of the Veteran’s cannabis use disorder, see Mittleider v. West, 11 Vet. App. 181, 182 (1998), as well as the behavioral manifestations the Veteran asserted were not considered in the June 2014 VA examination report, such as having ‘gone off’ while driving (e.g., honking his horn excessively and getting out of his car and screaming), the June 2016 VA examiner concluded that the Veteran’s PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, a finding that actually meets the criteria for only a 30 percent rating. Nevertheless, having resolved doubt in favor of the Veteran, the RO found that the Veteran’s symptoms more closely approximate the criteria for a 50 percent rating. The VA examiners and treatment providers are experts who are best able to assess which symptoms are present and, most importantly, their effect on impairment level even if some listed symptoms are not shown. Medical evidence is not categorically necessary to substantiate an appeal for a higher rating, but in this specific case, the Board finds that this is the most probative evidence. (Continued on the next page)   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and an initial rating higher than 50 percent for service-connected PTSD and associated symptoms is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor