Citation Nr: 18156024 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-49 297 DATE: December 6, 2018 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 30 percent, is denied. FINDING OF FACT For the entire initial rating period under appeal, the Veteran’s PTSD symptoms most nearly approximated occupational and social impairment with occasional decrease in work efficiency, but the evidence does not show symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity, such as difficulty understanding complex commands, impairment in memory or judgment, and suicidal ideations. CONCLUSION OF LAW The criteria for entitlement to an rating in excess of 30 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. INCREASED RATING Disability ratings are based on VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a Veteran’s service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran’s symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating 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. However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159. Competent lay evidence may establish the presence of observable symptomatology and may also be sufficient to support a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an increased rating for posttraumatic stress disorder. The Veteran’s service-connected PTSD has been evaluated as 30 percent disabling, effective March 24, 2008 under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran seeks entitlement to a disability evaluation greater than 30 percent for his PTSD and has claimed that he has impaired thinking, impaired judgment and difficulty with social/professional relationships as evidenced by his conduct and a February 2010 private medical examination. Under Diagnostic Code 9411 for rating PTSD, a 30 percent 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.71(a), Diagnostic Code 9411 A 50 percent 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. 38 C.F.R. § 4.71(a), Diagnostic Code 9411. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.71(a), Diagnostic Code 9411. A 100 percent evaluation is indicated 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. 38 C.F.R. § 4.71(a), Diagnostic Code 9411. The nomenclature employed in the portion of VA’s Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130. VA has amended the regulations relating to rating psychiatric disabilities, and now requires the use of DSM-5, effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in the evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014, and is not applicable to cases certified to the Board prior to that date. As this case was certified to the Board after August 4, 2014, GAF scores will not be used in rating the psychiatric disorder. 79 Fed. Reg. 45093. Symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when rating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. In addition, the rating must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126. When determining the appropriate rating to assign, the Board’s primary consideration is a Veteran’s symptoms, but the Board must make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a rating by demonstrating the particular symptoms associated with that percentage rating, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). A September 2008 VA examination found the Veteran to have PTSD signs and symptoms that were transient or mild and decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Additionally, the Veteran’s anxiety, due to irritability and tendency to worry, impacted his familial relationships at times. The Veteran used anti-depressant medication. The Veteran had been married for 40 years and he was involved with children and grandchildren. His marriage was described as “great.” He had several friends with whom he bowled and fished. He saw friend about twice per week. The Veteran was clean and casually dressed. He fidgeted. Speech was spontaneous, clear, and coherent. Attitude was cooperative. Affect was anxious. Mood was reported as “alright.” The Veteran could recite serial sevens and spell a word backwards and forwards. Thought process was unremarkable. No delusions or hallucinations were reported or detected. The Veteran reported difficulty initiating sleep. The Veteran did not have inappropriate behavior or panic attacks. There were no homicidal or suicidal thoughts. Impulse control was good. There were no episodes of violence. The Veteran was able to maintain minimum personal hygiene. There were no problems with activities of daily living. Remote memory was normal. Recent and immediate memory were mildly impaired. The Veteran had recurrent distressing dreams of his service stressor, difficulty falling or staying asleep, irritability, and outbursts of anger. The Veteran was capable of managing his financial affairs. He was not employed. He retired in 2005, and was eligible due to age or duration of work. The examiner diagnosed generalized anxiety disorder and depressive disorder. His symptoms included excessive and chronic worry, difficulty controlling worry, restlessness, sleep problems, tension, difficulties with concentration, and anxiety. The symptoms were moderately distressing since they interfered with his ability to sleep and caused tension and irritability. His relationships were mildly impacted, while his work functioning was moderately to severely affected. The Veteran reported he left his business due to worry and difficulty managing stress. The anxiety caused stress and decreased the overall quality of life. In a January 2010 private psychiatric examination, the Veteran was found to meet all the criteria necessary for the primary diagnosis of PTSD. During that examination, the Veteran discussed having anxiety, a depressed mood, situational memory loss, and chronic sleep impairment. As a result, the examiner noted that the Veteran was a man whose life has been profoundly affected and forever changed by what he went through during service and suggested that the Veteran follow up with a counselor to help him cope with PTSD. The Veteran never followed up. Additionally, during the January 2010 private examination, the Veteran stated that he was able to express loving feelings towards those he cared about in his life and that he had one or two good friends, despite always feeling suspicious of people. Evidence relevant to the current severity of PTSD also includes a January 2014 VA examination. Specifically, during the January 2014 VA examination, the Veteran was found to be experiencing the following symptoms of PTSD related to his fear of hostile military and/or terrorist activity on a persistent basis: Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s), recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s), intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s), marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s), avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s), avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s), markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). The Veteran denied current suicidal ideation, denied experiencing abuse or neglect, denied ever being hospitalized for any psychiatric concerns and denied any substance abuse issues. In terms of social relationships, during the January 2014 VA examination, the Veteran noted living together with his wife of 46 years and his mother-in-law. The Veteran stated that his marriage was strained because of his reported mental health concerns. He also noted that he had three adult children with whom his relationships were currently fine. The Veteran also explained that he maintained contact with one friend, with whom he spoke on a weekly basis. In terms of occupational history, the Veteran graduated from high school in 1967. He joined the service in 1967 and obtained a rank of Corporal E-4 after serving in Vietnam for 13 months. After service, the Veteran owned a die casting company for approximately 14 years, prior to retiring 2005. After review of the claims file, the examiner noted the Veteran to have 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. After consideration of all the evidence, the Board finds that the Veteran’s PTSD has not met, or more nearly approximated, the criteria for a 50 percent rating under Diagnostic Code 9411 at any point during the pendency of this appeal. The evidence of record does not show that the Veteran’s PTSD more closely meets the criteria for a 50 percent rating under Diagnostic Code 9411 than a 30 percent rating. The evidence does not indicate that the Veteran has manifested circumstantial, circumlocutory, or stereotyped speech; has panic attacks more than once a week; has difficulty in understanding complex commands; has an impairment of short- and long-term memory; has impaired judgment; has impaired abstract thinking; or has difficulty in establishing and maintaining effective work and social relationships, which result in occupational and social impairment with reduced reliability and productivity as envision by the rating criteria, and which are listed as examples of the type, extent and severity of symptoms warranting a 50 percent schedular rating. There is no lay or medical description of speech issues, panic attacks, difficulty in understand commands, impairment of long term memory, impaired abstract thinking, or impaired judgment. There is some impairment of short-term memory present and some difficulty with establishing relationships. However, examiners conducting the Veteran’s mental status evaluations have consistently described the Veteran’s PTSD as having some variation of mild impact in the Veteran’s social and occupational life. Overall, the evidence of record does show that the Veteran’s PTSD is more nearly approximated with the criteria for a 30 percent rating under the Diagnostic Code 9411 during the current appeal period. It is evident and consistent throughout the Veteran’s claims file that the Veteran has had a depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The most recent medical examination of note, the January 2014 VA examination, summarized the Veteran’s level of occupational and social impairment as 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. That evaluation more nearly approximates the criteria of a 30 percent rating under the Diagnostic Code 9411. The Board has examined all the factors and evidence to determine whether the Veteran has met or more closely approximated the criteria for 50 percent rating at any time pertinent to this appeal. However, when considering the overall evaluation of the examples which may support the 50 percent rating, the frequency, duration and severity of symptoms, the Veteran’s capacity for adjustment, and the examiner’s assessments of the Veteran’s overall psychological, social and occupational functioning, the Board must conclude that the Veteran’s PTSD has not met or is more closely approximated by the criteria for a 50 percent rating at any relevant time. The Board finds the statements of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation. However, even when taking the Veteran’s statements into account, the Board finds that the criteria for a rating greater than 30 percent have not been met at any time pertinent to this appeal. To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 30 percent rating for PTSD. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk