Citation Nr: 18153502 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 18-32 067 DATE: November 28, 2018 ORDER Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) is denied. FINDING OF FACT The Veteran’s service-connected PTSD with MDD has resulted in 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 symptoms such as depressed mood, anxiety, and chronic sleep impairment; but it has not resulted in occupational and social impairment with reduced reliability and productivity; it has not resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; and it has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for PTSD with MDD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from June 2000 to November 2000 and from October 2003 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in March 2018. A statement of the case (SOC) was issued in April 2018, and the Veteran filed his VA Form 9 in May 2018. Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In this case, the Veteran’s post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) is currently evaluated as 30 percent disabling under Diagnostic Code (DC) 9411, which concerns mental disorders. 38 C.F.R. § 4.130, DC 9411. The Veteran contends that he is entitled to an evaluation of 50 percent or greater. Under DC 9411, a 30 percent evaluation is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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 that 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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 memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not 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. See 38 C.F.R. § 4.126(b). Here, at the Veteran’s VA examination for PTSD in February 2017, the examiner, using DSM-V criteria, determined that the Veteran had 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 medication. The Veteran exhibited symptoms of depressed mood, anxiety, and chronic sleep impairment. The Veteran was reported to have recurrent, involuntary, and intrusive distressing memories of the traumatic events related to his PTSD, as well as recurrent distressing dreams related to the traumatic events. He avoids distressing memories, thoughts, or feelings associated with the traumatic events. The Veteran also had negative cognitions and moods, including persistent and exaggerated negative beliefs or expectations about himself, others, or the world. He had markedly diminished interest or participation in significant activities, and he had feelings of detachment or estrangement from others. He was further noted to have irritable behavior and angry outbursts (with little or no provocation), hypervigilance, exaggerated startled response, and problems with concentration. The February 2017 VA examiner observed that the Veteran was well-groomed. The Veteran presented with appropriate eye contact; and he was alert, oriented, and cooperative. His thought process was logical, and his speech was normal. He denied any delusional thinking, auditory or visual hallucinations, or suicidal or homicidal ideation. He appeared to have adequate insight and judgment. He had no apparent attention or memory difficulties and no psychomotor agitation. The VA examiner noted that the Veteran was at minimal risk of suicidal behavior at the time of the examination and that the Veteran was capable of managing his financial affairs. The Veteran denied any history of substance abuse. He is currently receiving individual and psychiatric care. At the time of the February 2017 VA examination, the Veteran had been married for 1 year, and he said he has friends that he talks to. After military service, the Veteran worked as a Department of Defense contractor for 6 years. Since 2013, he has worked as a police officer for the Mt. Olive Police Department. In a January 2017 VA Primary Care medical note, the Veteran complained of anxiety, irritability, and poor sleep. He reported having violent nightmares 6 or 7 nights a week, and he said he awakens to profuse sweats and soaked clothing. He experiences flashbacks during waking hours. He stated that he had panic attacks with hyper-ventilating and difficulty breathing. He reported chronic tiredness and lack of energy. He denied crying episodes but was concerned about feeling numb all the time with lack of emotions. He said he dislikes crowds and avoids them, if possible, and he said he remains hypervigilant at all times. In a related PTSD screening, the Veteran reported that he was easily startled and that he felt detached or cut off from others or from activities or his surroundings. He avoids external reminders of the stressful experiences from his military service. He said he often has strong negative feelings such as fear, horror, anger, guilt, or shame. He said he has moderately lost interest in activities that he used to enjoy, and he has extreme difficulty concentrating. In the Veteran’s May 2018 Form 9, the Veteran’s representative said that the Veteran’s personal appearance is not a priority for him. He has anger and impulse issues, and he has difficulty remembering things “that normal people remember”. He claims his wife must remind him to do even simple tasks. The Veteran states that he is unmotivated and that this effects his job and his relationship with others. The Veteran’s wife reports that he has mood swings, which impact his home life, his relationship with others, and his job. She reports their marriage has struggled due to conflict between the two of them, and she states that he is unable to perform well at work because of his weekly or more panic attacks. At an August 2016 private examination at Mt. Olive Family Medicine, the Veteran complained of anxiety, disturbance of mood, and bad dreams. Similarly, according to private counseling notes from the Goldsboro Counseling Center in August 2016, the Veteran reported having violent bad dreams several times a week to the point of interfering with sleep. He was reported to have panic attacks and trauma-related flashbacks. However, the examiner noted that the Veteran was calm; his thought process was intact, and he was not a danger to himself or others. He had no psychosis or antisocial symptoms, and he reported having no relationship issues. The Board finds the February 2017 VA examination to be the most probative evidence of record regarding the status of the Veteran’s mental disorders. The VA examiner considered the Veteran’s VA e-folder, CPRS, and reported history. This VA examiner’s evaluation is also consistent with the totality of the symptoms and the effects of the Veteran’s PTSD reported in his other treatment records from both the VA and private medical providers. After a thorough review of the evidence, it appears that the symptoms associated with the Veteran’s service-connected psychiatric disabilities most closely parallel the type of symptoms described in the criteria for the 30 percent disability rating. The Veteran has exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as depressed mood, anxiety, weekly panic attacks, chronic sleep impairment, and mild memory loss. 38 C.F.R. § 4.130, DC 9411. The Board acknowledges the Veteran’s assertion that his PTSD with MDD warrants a higher disability rating. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree or severity of the Veteran’s impairment. This is particularly so where the rating criteria require analysis of clinically significant symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the Veteran, who lacks medical training, is not competent to give evidence of the medical significance of his symptoms. Id. The Veteran lacks the adequate medical expertise to render a medical opinion as to the nature of his medical condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). Throughout the appeal period, the Veteran’s PTSD has not resulted in occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened effect; circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; or difficulty establishing and maintaining effective work relationships, which would be required for a 50 percent disability rating under DC 9411. 38 C.F.R. § 4.130, DC 9411. While the Veteran has presented with some symptoms listed in the criteria for a 50 percent disability rating, namely panic attacks more than once a week, these symptoms have not been shown to cause occupational and social impairment with reduced reliability and productivity, as required under DC 9411. Id. The Board does not consider only the bare psychiatric symptoms that a veteran experiences. Rather, the Board considers how those symptoms impact a veteran’s occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 442 (2002). As such, the mere presence of certain symptoms alone does not mandate a higher rating. As mentioned earlier, the Veteran is employed as a police officer with the Mt. Olive Police Department. He is married and has friends with whom he is in contact. Based on the foregoing evidence, the Veteran’s PTSD with MDD does not approximate the criteria for a rating of 50 percent. 38 C.F.R. § 4.130, DC 9411. The record does not indicate that the Veteran has exhibited any of the symptoms described in the criteria for a 70 percent or 100 percent disability rating. The Board acknowledges that the list of symptoms is not exhaustive; however, the Veteran’s reported symptoms have not caused occupational or social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as required for a 70 percent evaluation. 38 C.F.R. § 4.130, DC 9411. The Veteran has not exhibited symptoms such as suicidal ideation; obsessional rituals; illogical, obscure, or irrelevant speech; impaired impulse control with periods of violence; spatial disorientation; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. Id. Although the Veteran reported anger issues, the evidence does not show that these included periods of violence or any manifestation of like kind. To the extent the Veteran has exhibited panic attacks, they are not to the level of being near-continuous or affecting his ability to function independently, appropriately, and effectively. Likewise, the Veteran’s reported symptoms have not caused total occupational and social impairment, which is required for a 100 percent evaluation. 38 C.F.R. § 4.130, DC 9411. Therefore, the Veteran’s PTSD with MDD does not warrant a 70 percent or 100 percent evaluation. Based on above, the current 30 percent disability rating is the appropriate evaluation for the Veteran’s PTSD with MDD. The preponderance of the evidence is against an assignment of a 50 percent rating or higher at any point during the appeal period. Therefore, the Veteran’s claim of an evaluation in excess of 30 percent for post-traumatic stress disorder with major depressive disorder must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.21, 4.126, 4.130, DC 9411. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel