Citation Nr: 18157139 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-56 683 DATE: December 12, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT During the period on appeal, the Veteran’s psychiatric symptoms have been characterized by such symptoms as hypervigilance, recurrent nightmares, recurrent flashbacks, a persistent negative emotional state, sleep disturbances, and difficulty concentrating. During this period, the disability picture has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1968 to January 1971, including a tour of duty in the Republic of Vietnam. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Throughout the period on appeal, the Veteran has been assigned a 30 percent rating for an acquired psychiatric disorder, characterized as PTSD, under 38 C.F.R. § 4.130, Diagnostic Code 9411. For the next-higher 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to symptoms such 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 or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships. Based on the evidence of record, a rating in excess of 30 percent is not warranted. Indeed, the Veteran’s symptoms do not cause occupational and social impairment with reduced reliability and productivity due to his symptoms. Moreover, the Veteran’s objectively observable symptoms do not manifest as impaired judgment or impaired abstract thinking, stereotyped speech, difficulty in understanding complex tasks, or impairment of memory to a level that a 50 percent rating would be warranted. For example, in an April 2015 VA treatment evaluation, the Veteran displayed many symptoms consistent with a 30 percent rating. The Veteran reported hypervigilance, avoidance of triggers associated with trauma, recurrent nightmares and flashbacks, sleep disturbances, irritability, and difficulty concentrating. The Veteran reported that since retirement he believes his PTSD has worsened. However, the Board observes that the psychiatrist noted the Veteran to be well groomed, calm, and cooperative, and that he displayed linear and logical thinking, good insight, and good judgment. The psychiatrist also found no evidence of suicidal ideations, homicidal ideations, or paranoia. The psychiatrist prescribed medication for the Veteran’s PTSD symptoms, and also noted that the Veteran does not have substance abuse issues, drinks only one glass of wine per night, and exercises regularly. The Board observes that the Veteran’s June 2015 VA treatment records reflect that the Veteran’s overall psychiatric symptoms improved slightly, or at the very least, remained consistent with a 30 percent rating. In a clinical note, the Veteran was observed to be well groomed and oriented to all four spheres. The Veteran reported that medication was helping, and that he was less moody, less hypervigilant, less on guard, and was sleeping better. He also reported occasional feelings of hopelessness and worthlessness. In an August 2015 VA psychiatric examination, the Veteran’s psychiatric symptoms continued to be consistent with a 30 percent rating. Specifically, the psychiatrist reported that the Veteran displayed good hygiene, a good sense of humor, normal affect, and normal speech. The psychiatrist also noted that the Veteran was cooperative and pleasant. The Veteran reported recurrent and intrusive memories and nightmares of traumatic events. He reported hypervigilance, sleep disturbances, irritable behavior, and a persistent negative emotional state. However, the Veteran also reported a good relationship with his wife of 40 years and his two children. The Veteran reported regular social activity with friends, socialization with family, and regular exercise. The VA psychiatrist found the Veteran’s symptoms to be consistent with a 30 percent rating in that he demonstrated 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. The Veteran’s symptoms continued to be relatively consistent with a 30 percent rating in November 2015. In the VA treatment records, the psychiatrist noted that the Veteran was well groomed, calm, and cooperative, and that he displayed linear and logical thinking, good insight, and good judgment. The psychiatrist also noted that the Veteran displayed no suicidal ideations, homicidal ideations, or paranoia. The Veteran reported decreased libido and worsened sleep disturbances due to the side effects of the PTSD medication. During a follow up visit in February 2016, the Veteran reported that the stopped taking the PTSD medication due to the worsening side effects. However, the Veteran reported that he did not notice much of a difference, and the psychiatrist made similar observations regarding his normal affect, his appearance, and his psychiatric symptoms from the previous visit, which were consistent with a 30 percent rating. The Veteran also underwent a VA psychiatric examination in October 2016, which continued to show symptoms consistent with a 30 percent rating. The VA psychiatrist found that the Veteran displayed clear thoughts, an easy rapport, and genuine reporting. The Veteran reported hypervigilance, recurrent memories and nightmares of traumatic events, avoidance of external reminders that arouse distressing memories, persistent negative beliefs, persistent inability to experience positive emotions, irritability, and sleep disturbances. The Veteran reported suicidal thoughts, and stated that he did not previously report such thoughts due to fear of being fired from his job as a police officer. However, the Board observes that the VA psychiatrist opined that these thoughts were passive in nature, and that the Veteran denied active thoughts, plans, or intentions. The Veteran also reported good relationships with his wife and daughter and a mixed relationship with his son. He reported socializing twice weekly with a friend group for car related activities. He also reported enjoying doing yardwork and working on cars. He reported regular exercise, including joining a yoga study for Veterans with PTSD, which he stated was helpful for his symptoms. The VA psychiatrist again found the Veteran’s symptoms to be consistent with a 30 percent rating in that he demonstrated 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. Therefore, in view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent. Of note, a holistic review of the Veteran’s symptoms, such as normal speech, thought process, affect, judgment, and insight, without any signs of panic attacks, significant memory impairment, a psychosis, active suicidal ideations, or thought disorder, demonstrate that his symptoms are better categorized by the 30 percent rating he currently receives. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-17 (Fed. Cir. 2013). Indeed, the symptoms listed in the diagnostic code for a higher rating have not been shown. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause social impairment with reduced reliability and productivity. In this regard, it is clear that the Veteran’s disorder reflects some impact on his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. Specifically, as reflected in the medical evidence, including the October 2016 VA psychiatric examination, the Veteran maintains relationships with his wife and two children. In the context of discussing his marriage, he expressed being easily frustrated but reported that he learned tolerance. At the time of the examination, he reported that they had been married for 41 years with no separations. The psychiatrist noted that while he expressed some dissatisfaction in their relationship, there appeared to be no ongoing tension or conflicts. The Veteran also indicated in his VA Form 9 submitted in November 2016 that he dealt with lone wolf issues, however, the medical evidence noted above demonstrates that despite these issues he is able to maintain relationships with his wife and children and socializes regularly with his friends and family. Additionally, in the Veteran’s April 2015 VA treatment records, he reported hypervigilance specifically due to news reports and worry that he would be targeted for attack due to an Army sticker and license plate on his vehicle. He also reported that his symptoms worsened since retirement. However, there is not sufficient evidence to demonstrate that his symptoms cause social or occupational impairment to warrant a higher rating. Therefore, his level of social and occupational impairment does not cause reduced reliability and productivity even when factoring in other relevant criteria outside of the rating code. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected psychiatric disorder is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Specifically, while the Veteran reported hypervigilance, sleep disturbances, lone wolf issues, suicidal thoughts, recurrent nightmares and flashbacks, irritability, and memory impairment, these symptoms were discussed and addressed by the VA psychiatric examiners and treating medical providers. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel