Citation Nr: 18154469 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 17-06 370 DATE: November 30, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran does not exhibit occupational and social impairment with deficiencies in most areas due to symptoms such as suicidal ideation, obsessional rituals, near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1967 to November 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A subsequent rating decision issued in July 2016 increased the Veteran’s rating to 50 percent over the course of the entire appellate period. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130 under the General Rating Formula for Mental Disorders. A rating of 50 percent 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, Diagnostic Code 9411. A rating of 70 percent is assigned 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for 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. 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. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Federal Circuit provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Id. at 2. It 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 4. 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 2. The Veteran contends his service-connected PTSD should be evaluated in excess of 50 percent. Turning to the evidence of record, the Veteran has been married 5 times. He has a history of alcohol and opioid abuse. He currently lives with his daughter, son-in-law and grandchild. The Veteran was self-employed as a furniture maker and last worked in 2003. Currently he spends eight hours per day building a cabin on his daughter’s property where he plans to move after completion. The Veteran’s VA treatment records include a mental health note dated in October 2014. At that time, the Veteran was appropriately dressed, cooperative, and made good eye contact. His speech was normal and his affect appropriate. The Veteran was alert and able to concentrate. Both his short-term and long-term memory were intact. The Veteran denied experiencing hallucinations, delusions, suicidal ideation, and homicidal ideation. The Veteran’s thought process was linear and logical and he exhibited fair insight and judgment. The Veteran was afforded a VA psychiatric examination in March 2015. He stated his marital problems were the result of his anger and drinking. The Veteran reported he maintained good relationships with his adult children and lived with his daughter. He indicated that he had one close friend, who he rarely saw, and a few acquaintances. He enjoyed wood working, playing guitar and spending time with his grandchild. The Veteran recalled traumatic experiences in Vietnam daily and his nightmares recurred monthly. The Veteran also reported he avoided crowded places even though he tolerated them better than before. Notwithstanding the fact the Veteran’s reduced irritability, he preferred to remain isolated. The examiner determined the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Medical records obtained from July, September and November 2015, January 2016 and January 2017 reveal the Veteran exhibited appropriate appearance and was cooperative with mental health physicians. He made good eye contact and his speech was normal. The Veteran’s thought process was linear and logical. He denied suicidal ideation, homicidal ideation, and psychosis. The Veteran was oriented and fully alert. His memory, concentration, insight, and judgment were good. The Veteran reported he felt good during each visit. The Veteran underwent a final VA examination in July 2016. The Veteran stated that he had good relationships with his two adult children and continues to live with his daughter. He believes his children kept him alive after his divorce. The Veteran visits his childhood friend regularly and works with him on small building projects. The Veteran spends his time playing guitar, building a cabin, playing with his grandchild and dog. He is able to go grocery shopping, dine at restaurants and support his grandchild at t-ball games. He stated he does not enjoy going in public without family members because he feels more secure when accompanied by them. The Veteran also reported he has held approximately 40 jobs over 40 years. He repeatedly quit jobs because of an inability to work well with coworkers and supervisors. The examiner noted the Veteran was no longer using prescription medicine other than suboxone which is prescribed for pain management and opioid dependence. The Veteran reported he stopped using cannabis May or June 2016. The Veteran exhibited the following symptoms: suspiciousness; chronic sleep impairment; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; recurrent, involuntary and intrusive distressing memories; intense or prolonged psychological distress; avoidance of distressing memories or thoughts closely associated with traumatic event; feelings of detachment or estrangement from others; irritable behavior and outbursts of anger (with little or no provocation); hypervigilance; and sleep disturbance. The examiner described the Veteran’s symptomatology as consistent with occupational and social impairment with reduced reliability and productivity. A VA mental health note from September 2017 reflects that the Veteran had no complaints with respect to his mood or PTSD. His medications were discontinued and he notably did not want to take any medications for his PTSD. His appearance was appropriate, behavior cooperative, and his eye contact was good. His thought process was linear and logical and there was no evidence of suicidal or homicidal ideation or psychosis. He was oriented in all spheres and his remote and recent memory were described as good. After review of the above, the Board finds an evaluation of 70 percent is not warranted. The evidence weighs against a finding that the Veteran’s PTSD symptomatology more nearly approximates occupational and social impairment, with deficiencies in most areas, such as work school, family relationships, judgment, thinking or mood not shown. While not outcome determinative, the Veteran has not displayed symptoms 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; and an inability to maintain effective relationships. Although there is evidence the Veteran assaulted his neighbor during a violent outburst in 2006, this incident was a solitary and isolated incident. Additionally, the Veteran has demonstrated he is capable of engaging in close relationships such as his ability to live with his daughter, son-in-law, and grandchild and maintain a relationship with his adult son, and childhood friend. Such belies the notion of there being an inability to maintain effective relationships. The Veteran is also able to work on small building jobs with his childhood friend and spends approximately eight hours per day building a cabin for himself on his daughter’s property. The Veteran has consistently denied suicidal ideation, homicidal ideation, hallucinations and delusions for over 12 years. He has demonstrated logical and relevant though processes. Medical records confirm the Veteran has always appeared dressed properly, exhibited normal speech, maintained effective hygiene, and recently experienced a reduction in his irritability and anger. Thus, the medical evidence of record does not establish the requirements necessary to meet a rating of 70 percent. Consideration has been given to the Veteran’s personal belief that a higher rating should be assigned. He is competent to report his current psychiatric symptoms as these observations come to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the medical examiners have considered Veteran’s subjective statements with regard to the severity of his psychiatric disability and provided findings which directly address the criteria under which the disability is evaluated. As such, the medical evidence is considered the most probative evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial evaluation higher than 50 percent for his service-connected PTSD. In reaching this determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim, this doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel