Citation Nr: 18157787 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-48 328 DATE: December 13, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, to include: unspecified anxiety disorder; post-traumatic stress disorder (PTSD); and depression (hereinafter referred to as an acquired psychiatric disorder), is denied. FINDING OF FACT The evidence demonstrates that the Veteran’s acquired psychiatric disorder is manifested by no more than occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, 38 C.F.R. §§ 3.102, 3.156, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision (RD) of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). This RD was an initial grant for an acquired psychiatric disorder at 30 percent, which changed the Veteran’s effective date from January 2015 to June 2014. 1. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the present disability. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102; 38 C.F.R. § 4.3. The Veteran is currently rated as 30 percent disabled for an acquired psychiatric disorder, under 38 C.F.R. § 4.130, Diagnostic Code 9413. He contends that his disorder is more severe than currently contemplated by his assigned disability rating. When rating a medical disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, Diagnostic Code 9413, a 30 percent rating is assigned when a veteran’s psychiatric disorder causes 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). A 50 percent rating is assigned when a veteran’s psychiatric disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran’s psychiatric disorder causes 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 worklike setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran’s psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130. The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated 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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. The Veteran contends that his acquired psychiatric disorder is more severe than represented by the present evaluation. In support of this contention, the Veteran submitted evidence, in the form of letters from his private medical providers. The record includes reports by M. P. and J. W., both are licensed psychologists. The first letter, authored by M. P., Ph.D., dated in 2014, identifies various areas of the Veteran’s life affected by his acquired psychiatric disorder. The findings made by M. P., Ph.D., include: trauma-related symptoms from the Veteran’s service in Vietnam; symptoms relating to the Veteran’s general mood; symptoms relating to the Veteran’s general and acute anxiety; and the symptoms that affect the Veteran’s job performance. The symptoms of the Veteran’s acquired psychiatric disorder were noted to be instrumental in the demise of his marriage, which was noted to have resulted in at least one episode of police-involved domestic problems. He described himself as being a loner. M.P. indicated that job performance would suffer under a broad range of difficulties stemming from the Veteran’s psychiatric disability, to include memory problems, difficulty understanding directions, maintaining attention, and interacting with the public. The second letter, authored by J. W., Ph.D., dated December 22, 2014, makes essentially the same findings, which include: depression, anxiety, panic attacks, suspiciousness, chronic sleep impairment, hypervigilance, irritability, and difficulty controlling his anger. He was observed to have difficulties with motivation and controlling emotional outbursts. He attributed the Veteran’s difficulty with relationships to his irritability. J. W., Ph.D. felt that these symptoms and behaviors were consistent with a PTSD diagnosis. Moreover, he believed that the Veteran’s psychiatric disability renders him 100 percent disabled. In April 2015, the Veteran was given an initial examination pertaining to his acquired psychiatric disorder. During this examination, the VA examiner opined that the Veteran’s level of occupational and social impairment 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). The Veteran reported being independent and able to perform all of his activities of daily living (ADL’s). The Veteran also reported that he was able to maintain social relationships, as he had a girlfriend at that time. He also disclosed to the VA examiner that he had attended group and individual therapy sessions, and he was taking Paroxetine to help with his depression. The VA examiner noted at the close of the examination that the Veteran was alert and oriented throughout the examination and had no problems focusing or concentrating. The Veteran underwent a second VA psychiatric examination in September 2016. At that time, he was described as being a 69-year-old male who had worked as a maintenance technician for a utility company, but had been out of work since 2012. The Veteran reported that the utility company had “retired him,” which was his way of saying that he had been laid-off. He described spending time with his significant other and that he would take her shopping because she did not own an automobile. He also indicated that he was living with his son and reported that they had a good relationship. The VA examiner noted that he was concerned the Veteran had an alcohol abuse problem because the Veteran reported consuming a quart or more of liquor per week as well as a bottle of wine, and that he would occasionally consume alcohol in the morning to “get the day started.” Overall, the Veteran’s service connected psychiatric disability was found to result in 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 continuous medication. The VA examiner acknowledged that he was specifically asked to comment on the results from the private evaluations of record. The VA examiner stated that the results of the two private evaluations, including diagnosis, did not correlate with his professional medical opinion, nor did the private evaluations correlate with the two previous VA examinations. The VA examiner further opined that the lack or correlation between the private evaluations and the previous VA examinations was more likely than not due to the Veteran’s unreliable approach to the examinations, and less likely than not due to the Veteran’s service connected disability. VA treatment records document that the Veteran receives mental health services. The findings of those records align with the findings made in the VA examination reports. In August 2018, M. P., Ph.D. submitted a Disability Benefits Questionnaire (DBQ) on behalf of the Veteran indicating that he felt the Veteran’s service connected disability manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. His active symptoms were listed to include depressed mood, anxiety, suspiciousness, weekly panic attacks, memory impairment, intermittent illogical speech, impaired judgement and impulse control, and an inability to establish and maintain effective relationships. There is a contrast in the findings made by the VA examiners and those made by the private psychologist. The private psychologists describe a much greater level of severity. Those findings are largely generalized and not supported by the record. For example, while the 2018 report from M.P. described the Veteran as having an inability to establish and maintain effective relationships, there was no discussion of his relationship with his son, which was described as a good relationship, and having a significant other (girlfriend) who he supported by driving her places, going shopping, and going out for dinner. Such shows that the Veteran is capable of establishing and maintaining effective relationships. Further, although the private reports list the Veteran’s symptoms, the functional impairment experienced by the Veteran is not made apparent. Mauerhan, 16 Vet. App. at 436. To the contrary, the VA treatment records and VA examinations an overall high level of functioning. The private examiners also provide no basis for many of the findings. When assigning probative weight to any medical opinion, the Board must consider whether it is: (1) based on sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). It may also consider whether the examiner had access to the claims file, reviewed prior clinical records and pertinent evidence, and provided a thorough, detailed and definitive opinion supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Based upon the most probative medical evidence in the record, the Board finds that the Veteran’s service connected disability is manifested by no more than occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The pertinent evidence suggests that the Veteran’s occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks neither caused the Veteran to lose his job as a maintenance technician, nor prohibited him from obtaining other gainful employment. This conclusion is based on the fact that the Veteran has continually shown that he is able to function from day-to-day, maintain his family and social relationships, look after his own financial affairs, and perform all of his activities of daily living (ADL’s). Hence, there is not enough probative evidence in the record to demonstrate an occupational and social impairment with reduced reliability and productivity due to the Veteran’s service connected disability. The VA examination reports are found to be adequate, persuasive, thorough, and more probative than private provider reports. The medical findings in this case directly address the criteria under which this disability is evaluated and the objective medical evidence is also accorded greater weight than the subjective assertions by the Veteran that his current symptomatology warrants a higher disability rating. Hence, the evidence of record suggests that the Veteran’s current disability rating of 30 percent is most appropriate. The claim for entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder is denied. Consideration has been given to the Veteran’s personal belief that a higher rating should be assigned for his psychiatric disability. He is certainly competent to competent to convey those symptoms which comes to him through his senses. However, he is not competent to make a determination or diagnosis that his service connected disability is severe enough to warrant a higher disability rating than what he is currently rated at. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In weighing the Veteran’s contentions against the rest of the objective medical evidence presented in the instant case, a higher disability rating is not warranted because the most probative medical evidence does not rise to any of the following levels: total occupational and social impairment; occupational and social impairment, with deficiencies in most areas; or, occupational and social impairment with reduced reliability and productivity. Mauerhan, 16 Vet. App. at 442. Finally, where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. The Board has considered whether an inferred claim for a total disability rating based on individual unemployability has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, because Rice does not suggest that a disagreement with a decision denying entitlement to an increased rating must be read to include a disagreement with the denial of TDIU, the Board finds that an inferred claim for TDIU pursuant to Rice is not raised. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Meiners