Citation Nr: 18151614 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-48 489 DATE: November 20, 2018 ORDER 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a lumbar spine disability. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral tinnitus. 3. Entitlement to an increased rating of 50 percent, and no higher, for posttraumatic stress disorder, depression not otherwise specified, and attention deficit, hyperactivity disorder, predominantly inattentive type, and traumatic brain injury with no cognitive impairment (collectively “PTSD”) is granted. FINDINGS OF FACT 1. In an unappealed August 2012 rating decision, the RO denied service connection for a lumbar spine disability based on a finding that the Veteran’s disability was due to an injury prior to service and was not aggravated by service. 2. Evidence received subsequent to the August 2012 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability. 3. In an unappealed January 2013 rating decision, the RO denied service connection for bilateral tinnitus based on a finding that the Veteran’s disability was due to an injury prior to service and was not aggravated by service. 4. Evidence received subsequent to the January 2013 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for bilateral tinnitus. 5. The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity but is not manifested by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The August 2012 rating decision denying service connection for a lumbar spine disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for a lumbar spine disability on the basis of new and material evidence have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The January 2013 rating decision denying service connection for bilateral tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. The criteria for reopening the claim for service connection for bilateral tinnitus on the basis of new and material evidence have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for entitlement to an increased rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.124a, Diagnostic Code (DC) 8045, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1999 to September 2011. New and Material Evidence If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claim on a de novo basis. 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a lumbar spine disability. The claim for service connection for a lumbar spine disability was initially denied in an August 2012 rating decision based on a finding that the Veteran’s lumbar spine disability preexisted service and was not otherwise related to or aggravated by service. The Veteran was notified of this determination in an September 2012 letter, which included information about the Veteran’s appeal rights. The Veteran did not appeal this decision. The Veteran has not contended that this rating decision is not final as to this issue. Thus, the August 2012 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the August 2012 rating decision included the Veteran’s DD Form 214, service treatment records (STRs), VA examinations, and VA treatment records. The evidence added to the file since the last final decision are VA treatment records, lay statements, and copies of STRs. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in August 2012. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. VA treatment records received since the August 2012 decision reflect ongoing complaints related to his lumbar spine; however, they do not support evidence that the Veteran’s lumbar spine disability was aggravated by service. Although the Veteran has submitted clinical records that demonstrate evaluation for his lumbar spine disability, none of this evidence establishes that the lumbar spine disability did not preexist service or that the disability was aggravated by service. The Veteran’s current treatment records for a lumbar spine disability do not provide any new and material evidence for the claim of service connection for a lumbar spine disability, as they do not contain any new information relating to the substantiation of the claim at hand. This additional clinical evidence does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. The STRs received are merely duplicates of records that were previously reviewed. Thus, the Board concludes that this evidence is not new and material under 38 C.F.R. § 3.156(a) and does not constitute relevant service department records under 38 C.F.R. § 3.156(c) since they were already of record previously. Additionally, the Veteran’s assertions that his lumbar spine was aggravated during service are essentially duplicative of his prior assertions and are not new and material evidence. The evidence received since the last final denial is duplicative or cumulative of prior evidence of record. The Board finds that none of the evidence raises a possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the additional evidence received since the August 2012 decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the claim of service connection for a lumbar spine disability is not reopened. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral tinnitus. The claim for service connection for bilateral tinnitus was initially denied in an January 2013 rating based on a finding that the Veteran’s bilateral tinnitus preexisted service and was not aggravated by service. The Veteran was notified of this determination in an January 2013 letter, which included information about the Veteran’s appeal rights. The Veteran did not appeal this decision. The Veteran has not contended that this rating decision is not final as to this issue. Thus, the January 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the January 2013 rating decision included the Veteran’s DD Form 214, STRs, and VA treatment records. The evidence added to the file since the last final decision are VA treatment records and lay statements. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in January 2013. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. VA treatment records received since the January 2013 decision reflect ongoing complaints for tinnitus, however do not reflect evidence to support that the Veteran’s bilateral tinnitus did not preexist service or that it was aggravated by service. The Veteran’s current treatment records for bilateral tinnitus do not provide any new and material evidence for the claim of service connection for bilateral tinnitus, as they do not contain any new information relating to the substantiation of the claim at hand. This additional clinical evidence does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. Additionally, the Veteran’s assertions that his tinnitus was aggravated during service are essentially duplicative of his prior assertions and are not new and material evidence. The evidence received since the last final denial is duplicative or cumulative of prior evidence of record. The Board finds that none of the evidence raises a possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the additional evidence received since the January 2013 decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the claim of service connection for bilateral tinnitus is not reopened. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In an August 2012 rating decision, the Veteran was granted service connection for PTSD, depression not otherwise specified, and attention deficit, hyperactivity disorder, predominantly inattentive type, and traumatic brain injury with no cognitive impairment, and assigned a 30 percent evaluation, effective September 27, 2011. In June 2013, the Veteran applied for an increased rating. In the April 2014 rating decision on appeal, the Veteran’s 30 percent rating was continued. Although this appeal was still pending at the time, the Veteran reapplied for an increased rating in June 2015. The Veteran’s disability is rated under DC 8045-9411. The hyphenated DCs in this case indicate residuals of a traumatic brain disease under DC 8045 as the service-connected disorder, and PTSD under DC 9411 as a residual disabling condition. The rating decision and accompanying statement of the case indicate that separate evaluations had not been assigned because the signs and symptoms of the Veteran’s PTSD could not be separated from the current residuals of the TBI, and thus to provide separate ratings would constitute prohibited pyramiding. Under DC 8045 there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation under listed facets. 38 C.F.R. § 4.124a. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” to be referred to as the Not Otherwise Classified Table. Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the Not Otherwise Classified Table. However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under this Table. Id. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the Not Otherwise Classified Table. Id. Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate DC: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; any autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate DC. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the Not Otherwise Classified Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id Consideration is given to the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. The Not Otherwise Classified Table contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100-percent evaluation is assigned if total is the level of evaluation for one or more facets. If no facet is evaluated as total, then the evaluation assigned is based on the highest level of severity for any facet, where 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. For the memory, attention, concentration, executive functions facet, a “0” level of impairment is assigned with no complaints of impairment. A “1” level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A “2” level is assigned with objective evidence on testing of mild impairment. A “3” level is assigned with objective evidence on testing of moderate impairment. A “total” level is assigned with objective evidence on testing of severe impairment. For the judgment facet, a “0” level of impairment is assigned for normal judgment. A “1” level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A “2” level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. A “3” level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A “total” level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. For the social interaction facet, a “0” level of impairment is assigned when social interaction is routinely appropriate. A “1” level is assigned when social interaction is occasionally inappropriate. A “2” level is assigned when social interaction is frequently inappropriate. A “3” level of impairment is assigned when social interaction is inappropriate most or all of the time. For the orientation facet, a “0” level of impairment is assigned when always oriented to person, time, place and situation. A “1” level is assigned when occasionally disoriented to one of the four aspects of orientation. A “2” level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A “3” level is assigned when often disoriented to two or more of the four aspects of orientation. A “total” level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the motor activity facet (with intact motor and sensory system), a “0” level of impairment is assigned for normal motor activity. A “1” level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A “2” level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A “3” level is assigned for motor activity moderately decreased due to apraxia. A “total” level is assigned for motor activity severely decreased due to apraxia. For the visual spatial orientation facet, a “0” level of impairment is assigned when normal. A “1” level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system). A “2” level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS. A “3” level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A “total” level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. For the subjective symptoms facet, a “0” level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or the Veteran’s work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A “1” level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to- moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). A “2” level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, the Veteran’s work, family or other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days). For the neurobehavioral effects facet, a “0” level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A “1” level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A “2” level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A “3” level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the communication facet, a “0” level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A “1” level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A “2” level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A “3” level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A “total” level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. For the consciousness facet, a “total” level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. There are five notes that accompany DC 8045. Only the first four are pertinent to the claim currently before the Board. Note (1) states that there may be an overlap of manifestations of conditions evaluated under the Not Otherwise Classified Table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another DC. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 38 C.F.R. § 4.124a, DC 8045. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. at Note (2). Instrumental activities of daily living refer to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. at Note (3). The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. Id. at Note (4). The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities: A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent disability rating is warranted when 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; difficulty in establishing and maintaining effective work and social relationships. Id. Under the formula, 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 inability 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. Id. 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. Id. 3. Entitlement to an increased rating in excess of 30 percent for PTSD. The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of an increased rating of 50 percent for PTSD, but the preponderance of the evidence is against entitlement to an evaluation in excess of 50 percent. The reasons follow. The evidence shows that the Veteran’s PTSD results in agitation, depression, difficulty sleeping, nightmares, anxiety, suspiciousness, panic attacks, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, as documented in the May 2014 VA examination. The examiner described that the Veteran’s mood as mostly agitated and depressed; the Veteran reported difficulty with sleeping and the presence of nightmares; the Veteran reported regular anxiety without loss of appetite. The Veteran denied suicidal or homicidal ideation, denied hallucinations, and had no manic episodes. VA treatment records from 2013 to 2015 demonstrate that the Veteran was found to maintain a normal appearance, behavior, orientation, speech, concentration, judgement, and thought processes. These treatment records also show that the Veteran did not experience suicidal or homicidal ideation or intent. The records show that the Veteran variably exhibited anxiety and depression. The Board finds that the evidence establishes entitlement to a 50 percent rating. However, the Board finds that the Veteran’s PTSD disability picture does not rise to the level of a 70 percent rating. For example, although an October 2013 VA treatment record found that the Veteran experienced auditory hallucinations, the Veteran later denied hallucinations on multiple occasions. As such, the Board finds that the Veteran’s hallucinations were an isolated and temporary symptom, and the combination of observations noted by the Veteran’s VA treatment do not support a finding of occupational and social impairment deficiencies in most areas. With regard to the lay statements submitted by the Veteran and others, the Board notes that in a March 2014 lay statement submitted by R.J., it was reported that the Veteran’s temperament and behavior patterns prevented the Veteran from maintaining employment, and that the Veteran experienced memory loss. In an April 2014 lay statement submitted by the Veteran’s brother, the symptoms reported by R.J. were reiterated, and the Veteran’s brother also stated that the Veteran was socially withdrawn, is unable to maintain a relationship, and has unprovoked outbursts of violence. However, the Board notes that these symptoms are not supported by the Veteran’s VA treatment records between 2013 and 2015, nor by the May 2014 VA examination, which document less severe symptoms than alleged in these lay statements. For example, VA treatment records and examinations show that the Veteran demonstrated appropriate behavior, speech, concentration, judgment, and thought processes. Additionally, in the May 2014 VA examination, the Veteran reported that he had friends with whom he communicated via internet and that he participated in faith based group therapy, which weighs against a finding of difficulty in establishing and maintaining effective social relationships. In a June 2014 VA treatment record, the Veteran specifically denied a history of physical violence. As the lay statements contradict the more objective medical evidence of record, are not consistent with behavioral observations of the Veteran by medical professionals for a span of approximately two years, including the dates when the lay statements were received, and contain uncorroborated symptoms that the Veteran specifically denied, the Board assigns them lessened probative value. The Board is aware that the May 2014 VA examiner checked that the Veteran’s PTSD was manifested with total occupational and social impairment; however, it is the Board that is the fact finder in determining what evaluation is warranted for the Veteran and not the medical professional. Additionally, when the examiner was asked, “Which of the following best summarizes the Veteran’s level of occupational and social impairment with regard[] to all mental diagnoses,” the description provided is “Total occupational and social impairment.” In other words, the examiner was not provided the examples of symptoms that demonstrate such a level of severity. In fact, when asked in the examination report to check the symptoms that the Veteran has, the examiner did not check any of the symptoms described under the 100 percent rating. Accordingly, the Board assigns more probative value to written observations and analyses provided by the examiner, which do not support that the Veteran’s disability has resulted in overall impairment to the required level of severity to warrant an evaluation in excess of 50 percent. To the extent that the evidence of record documents some of the symptoms included in the individual rating criteria for an increased 70 percent disability rating, the Board finds that such symptoms have not resulted in overall impairment to the required level of severity so as to warrant an increased disability rating. Therefore, the Board finds that the Veteran’s manifested PTSD symptoms for the period on appeal are most closely approximated by the 50 percent disability rating as discussed above. Importantly, he has not shown occupational and social impairment with deficiencies in most areas; nor are his PTSD symptoms of similar severity, frequency, and duration in order to warrant an increased 70 percent disability rating throughout the rating period. Overall, the evidence presents an overall disability picture that supports that the Veteran’s PTSD has manifested with occupational and social impairment with reduced reliability and productivity. DC 8045 indicates that emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings—mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” As the Veteran has been diagnosed with PTSD, evaluating the Veteran’s emotional/behavioral symptoms under the criteria in the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” is not warranted. Additionally, the highest number assigned under that Diagnostic Code for the residuals of a TBI would be a 40 percent rating, which would be based on memory, attention, concentration, and executive functions, which contemplates mild impairment of memory, attention, concentration, which symptoms are already contemplated by the 50 percent rating. The 50 percent rating is higher than the 40 percent rating, and thus, the Veteran benefits from being evaluated based on the psychiatric disorder symptoms. Thus, the Board finds that an increased disability rating of 50 percent for the Veteran’s PTSD is warranted for the period, but that the preponderance of evidence is against an evaluation in excess of 50 percent. To this latter extent, there is no reasonable doubt to be resolved, and the claim for an evaluation in excess of 50 percent is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As an aside, the Board notes that in a March 2014 lay statement, R.J. said that the Veteran was unable to maintain employment because of his psychiatric disorder. Following this lay statement, the Veteran submitted a formal claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU) in June 2015, wherein he listed all of his service-connected disabilities as being the basis for this claim. This claim was denied in a September 2015 rating decision, and the Veteran did not appeal the decision. The Veteran’s formal claim and the adjudication of the claim came after the lay statement. The Board does not find that a claim for a TDIU rating has been raised following the September 2015 denial of the TDIU rating. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel