Citation Nr: 18154734 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 17-01 787 DATE: December 3, 2018 ORDER Entitlement to an increased rating in excess of 50 percent for 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, impaired impulse control, spatial disorientation or neglect of personal appearance and hygiene. CONCLUSION OF LAW The criteria for entitlement to an increased 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 in the United States Marine Corps July 1968 through July 1970. He was honorably discharged. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (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. 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, DC 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 underwent a VA examination in July 2015. The examiner noted the Veteran was married and receiving Social Security Disability benefits. Prior to this, the Veteran obtained a Master’s degree in Construction and worked for over 30 years in his field. Additionally, the Veteran was employed as a reserve law enforcement officer for 27 years. He reported that volunteered with the fire department in search and rescue operations. The Veteran was actively treating his disability at the VA medical center (VAMC). His symptoms included depressed mood, anxiety and chronic sleep impairment. The Veteran appeared at the examination promptly. He was dysphoric and somber. The Veteran exhibited adequate judgment and insight. The examiner did not observe any impairment in the Veteran’s orientation to time, place or person. The examiner reported the Veteran experienced occupational and social impairment with decrease in work efficiently and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. VAMC medical records beginning February 2012 through the pendency of the appeal indicate the Veteran was seen by mental health providers and prescribed medication to treat depression and PTSD symptoms. In October 2012 the Veteran stated he pled guilty to a criminal charge of “structuring” and was facing civil penalties. He reported he felt stressed and that his home life was tense and difficult. Despite his legal challenges and financial difficulties, the Veteran was able to manage his stress and support his spouse. VAMC records are silent as to mental health treatment between October 2013 and August 2015 because the Veteran ceased treatment. Mental health examinations conducted in August 2015, April, June, September 2017, and January 2018 show the Veteran was appropriately dressed and well-groomed. He did not exhibit nor report any instances of suicidal ideation, homicidal ideation, auditory or visual hallucinations, delusions or paranoia. Medical records clearly demonstrate the Veteran was friendly and consistently cooperated with mental health providers. He exhibited linear, logical, coherent and relevant thought processes. The Veteran’s speech was relevant, coherent, goal oriented and of natural rate and tone. His memory was described as intact and appropriate. The Veteran was attentive during all examinations and his affect was euthymic in all but the August 2015 session. VA treatment records show evidence of worsening depressive symptoms in August 2015 mainly due to physical pain and biological changes. Despite this however, the Veteran stated that he had the support of his spouse and was dedicated to his family. By April 2017 the Veteran’s PTSD and depression symptoms improved, although he reported feeling anxiety and increased irritability. In September and December 2017, the Veteran reported that he felt no anxiety, depression or PTSD symptoms. The Veteran underwent a final VA examination in July 2018. The examiner reported the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted the Veteran’s physical health was deteriorating and his reaction was becoming more negative. She also stated he was prescribed medication to treat his PTSD symptoms, had not attempted suicide, had no history of mental health hospitalizations and attended outpatient mental health treatment at VAMC. The Veteran exhibited depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short-term and long-term memory, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner also noted the Veteran was currently married and despite a slight deterioration, the marriage was stable. The Veteran submitted several lay statements. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran states he has no friends or family, suffers from anxiety and chronic sleep disorder, is unable to maintain proper hygiene, has gained weight and has had suicidal thoughts. He also stated he has been unable to work because of PTSD, physical injuries, and overall physical deterioration. In October 2015 he claimed the examination was inadequate because the examiner failed to address matters that would have increased his current 50 percent rating to “70 percent or greater.” An evaluation of 70 percent is not warranted, however. There is no evidence the Veteran suffers from occupational and social impairment, with deficiencies in most areas, such as work school, family relationships, judgment, thinking or mood is not shown. While not outcome determinative, the Veteran has not displayed symptoms such 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; and an inability to maintain effective relationships. The evidence simply does not establish a severity of symptoms that is commensurate with a 70 percent rating. The Veteran has demonstrated that he is capable of engaging in favorable relationships. Indeed, the record shows that the Veteran enjoys a loving, caring, and supportive relationship with his spouse despite a slight recent deterioration. The Veteran was capable of caring for his spouse during difficult periods of their life together. Such belies the notion of there being an inability to maintain effective relationships. The Veteran maintained a career in construction for 30 years and a second career as a reserve law enforcement officer for 27 years. The evidence establishes the Veteran was able to obtain and maintain employment and professional relationships for 3 decades in two different professions. The record clearly establishes the Veteran has responded positively to medical intervention. His anxiety, depression and PTSD symptoms have been well-controlled. The Veteran has consistently denied suicidal ideation and has had no mental health hospitalizations even though lay statement provided in November 2015 and December 2016 state he had considered suicide. Consideration is made to the Veteran’s reported of experiencing suicidal thoughts. The Court has held that the presence of suicidal ideation in and of itself can support the assignment of a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, unlike the appellant in Bankhead, who had an established history of suicidal ideation, the Veteran in the present case had not reported suicidal ideation to mental health providers throughout the course of psychological and psychiatric treatment. The Veteran consistently denied suicidal ideation to healthcare providers. The Veteran first mentioned he experienced suicidal ideation in his notice of disagreement. The Veteran’s medical record reflects his consistent denial of suicidal ideation to healthcare providers. His reports to his care providers and VA examiners, which were for purposes of diagnosis and treatment, are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Thus, the report of suicidal ideation is deemed not representative of the overall severity of his PTSD and appears to have been made in the self-interest of obtaining benefits. Consideration has also 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 him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran’s assessment of the severity of his disability. The examinations also took into account the Veteran’s subjective statements with regard to the severity of his psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an evaluation higher than 50 percent. The Board has considered the Veteran’s assertion the July 2015 examination was inadequate. The VA examination in question was conducted by a qualified examiner who reviewed the Veteran’s prior medical history and examinations. The report includes numerous narrations from the Veteran’s claim file, and the examiner provided detailed summaries from her in-person examination of the Veteran. The examination report is sufficiently detailed and the conclusions are supported with adequate data and rationales. There is nothing in the report to suggest that the examiner was prejudiced in her findings. Accordingly, the Board deems the July 2015 VA examination adequate for adjudication purposes. Reference is made to the Veteran’s report in 2014 of being in receipt of SSDI benefits, and that his records from the Social Security Administration have not been associated with the record. There is no need to Remand for such records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran reported in December 2016 that his unemployment was due to surgeries to his back and pain in his neck, shoulders, and knees. This statement also serves as the basis for the Board’s determination that a claim for a total disability rating based on individual unemployability is not presently before VA. Rice v. Shinseki, 22 Vet. App. 447 (2009). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel