Citation Nr: 19106956 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-03 731 DATE: January 29, 2019 ORDER Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s PTSD symptoms do not approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2008 to March 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. On appeal, the Veteran contends that her PTSD symptoms more closely resemble that of a 70 percent disability rating. 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. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, 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. DC 9411 is assignable for a diagnosis of PTSD. In order to qualify for a 100 percent disability rating for PTSD, a veteran must exhibit 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. § 4.130. To qualify for a 70 percent disability rating, a veteran must exhibit occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. In May 2015, the Veteran underwent a VA examination for her claim herein. The VA psychologist examined the Veteran, reviewed the electronic records, and summarized the Veteran’s statements. The associated report indicates that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had adequate appearance and hygiene, was appropriately attentive and responsive, lucid, orientated, and slightly anxious, had well-organized thought processes, and that the Veteran denied any thoughts of self-harm or psychosis. At the time of this examination, the Veteran was in school full time but was not working. In March 2016, the Veteran reported that her PTSD has worsened. Specifically, she stated that she has a difficult time dealing with stress either at work or home and that her mental condition affects her relationships. The Veteran underwent another VA examination in May 2016. The VA psychologist examined the Veteran, reviewed the electronic records, and summarized the Veteran’s statements. The associated report indicates that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, and disturbances in motivation and mood; the Veteran exhibited adequate appearance and hygiene, and there was no evidence of thought disorder, but there were signs of irrational self-judgment. Attention and memory appeared intact, and the Veteran exhibited above-average intelligence. The Veteran denied any suicidal or homicidal ideation, as well as any psychotic symptoms; however, the Veteran reported fantasies about “bludgeoning” someone when she gets angry. The examiner noted that the Veteran has shown resilience in completing school and has plans to secure a job conducting research on sea turtles. In January 2017, the Veteran’s private psychologist (Dr. M.B.) completed a VA PTSD Disability Benefits Questionnaire (DBQ). Dr. M.B. examined the Veteran, reviewed medical records from May 2016 to the then-present, and summarized the Veteran’s statements. The associated report categorized the Veteran’s PTSD as occupational and social impairment with reduced reliability and productivity. Dr. M.B. noted symptoms of depressed mood, anxiety, panic attacks that occur more than once a week, chronic sleep impairment, mild memory loss, disturbances of mood or motivation, an inability to establish and maintain effective relationships, and difficulty adapting to stressful circumstances. To the extent that the Veteran exhibited some symptoms listed under a 70 percent disability rating, Dr. M.B.’s overall rating was occupational and social impairment with reduced reliability and productivity, which is indicative of a 50 percent disability rating. Dr. M.B.’s evaluation also is consistent with the other medical evidence of record. Although dated May 2015, the VA received, in January 2017, a letter from T.T., the Veteran’s mother. In summation, T.T. described the Veteran as an intolerant, short, and argumentative individual, who cannot tolerate being around crowds or people. T.T. reports that the Veteran has lost all communication with friends and has isolated herself from family members. According to T.T., the Veteran cannot handle well criticism from coworkers or superiors, has trouble with school, and cannot function in society. VA received, in January 2017, a letter from Dr. M.M., a psychologist and faculty member at the Veteran’s university. In her own words, Dr. M.M. described the Veteran as an “amazingly diligent, mature, and disciplined student.” Dr. M.M. had such confidence in the Veteran’s judgment and level-headedness that Dr. M.M. hired the Veteran to be a permanent pet sitter while Dr. M.M. travels. Most notably, however, Dr. M.M. thoroughly is impressed with the Veteran’s ability to manage her PTSD, specifically that the Veteran has “persevered to function in spite of her disability.” Dr. M.M. referenced a particular occasion where a visiting faculty member for one of the Veteran’s courses rescheduled an examination in conflict with the current syllabus, which created extreme stress in the Veteran due to her PTSD. In addition, Dr. M.M. stated that she has worked at VA hospitals in the past, particularly with veterans who suffer from PTSD rated at 100 percent, and that the Veteran’s symptoms resemble a 100 percent disability rating. The Veteran also submitted in January 2017 her own statement as a sworn affidavit. The Veteran explains that, since her original diagnosis, her symptoms have worsened. Specifically, she endorses: countless panic attacks, trust issues, staying locked in her house several times per week, having lost every job she’s had since her discharge from service (either because of mental or physical demands), constantly having to apologize to classmates and professors for angry and hostile comments, having to switch majors in school because she does not work well with other people, having constant depression and anxiety, and failing to remember to eat or bathe. VA Medical Center (VAMC) records from April 2009 to November 2017 document the continued care and treatment of the Veteran for various conditions, including PTSD. Most notably, those records show that, in August 2017, the Veteran reported burning herself on two occasions. Additionally, in an October 2017 note, the Veteran reported that her severe anxiety and depression has improved since having dropped her courses. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, is denied. Reviewing all the evidence of record, the Board finds that the Veteran’s PTSD more closely approximates the rating criteria for the current 50 percent disability rating. See 38 C.F.R. § 4.7, 4.130, DC 9411. The Board finds the medical evidence of record to be the most probative on this issue. To be sure, all of the examinations of record, including the private DBQ, have characterized the Veteran’s PTSD as occupational and social impairment with reduced reliability and productivity—a hallmark indication of a 50 percent disability rating. In reviewing all three examinations, the Board notes that only two symptoms indicative of a 70 percent disability rating ever are noted and only in the DBQ. Dr. M.B. noted that the Veteran exhibited an inability to maintain effective relationships and difficulty in adapting to stressful circumstances. All other objective observations from the medical professionals reveal findings and symptoms that are consistent with a 50 percent disability rating. While the May 2016 VA examination report indicates that the Veteran had thoughts about “bludgeoning” someone, this does not rise to the level of persistent danger of hurting others as contemplated by a 100 percent disability rating. The same is true for the two occasions on which the Veteran reported burning herself. The Veteran also endorsed occasional “tuning out” while walking, but this does not equate to disorientation as to time or place as contemplated under a 100 percent disability rating. The statements from T.T. and the Veteran paint the picture that the Veteran is unbale to work with individuals in any work-like setting and that she cannot leave her house due to constant anxiety and depression, which causes her to forget to eat or bathe. While the Veteran and her mother are competent to report the Veteran’s day-to-day moods and activities, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), such contentions are not supported by the objective evidence of record. Both VA examinations report that the Veteran exhibited adequate appearance and hygiene, and the January 2017 DBQ made no mention that the Veteran was experiencing problems bathing or taking care of herself. It defies credulity that Dr. M.B. would not have commented on such symptoms if they indeed existed. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). Additionally, the Board notes that, as part of her graduate program, the Veteran attended a trip to the Galapagos Islands in the summer of 2017. Although the Veteran reports requiring the help of her bunkmate to navigate crowds throughout the day and to maintain her anxiety, the Board does not find that this type of activity adequately portrays the behavior of an individual who maintains a 70 percent or higher disability rating for PTSD. As such, the Board affords T.T. and the Veteran’s statements little probative value. The Board likewise affords Dr. M.M.’s statement little probative value due to its inherent inconsistencies. To be sure, Dr. M.M. provided a glowing review of the Veteran. Dr. M.M. is impressed with the Veteran’s judgment, level-headedness, ability to effectively manage her PTSD, and has a great deal of trust for the Veteran, so much so that she entrusts her own pets to the Veteran while she travels. In the same breath, however, Dr. M.M. states that she is familiar with VA patients who have been rated as totally disabled due to PTSD and that the Veteran’s PTSD closely resembles these other individuals’. The Board simply cannot agree. A 100 percent disability rating contemplates total occupational and social impairment with symptoms such 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; and memory loss for names of close relatives, own occupation, or own name. There is no objective medical evidence, private or VA, that the Veteran sufficiently has endorsed these symptoms. Logic dictates that an individual, who exhibits the above symptoms, cannot simultaneously exhibit sound judgment, level-headedness, and the ability to effectively manage one’s own PTSD. Furthermore, Dr. M.M.’s observations of the Veteran’s reaction to the examination switch appear to be quite normal. The Board would expect any student, with or without PTSD, to experience some level of anxiety and frustration if a visiting faculty member were to create an examination conflict. Overall, because of the inherent inconsistencies, the Board affords Dr. M.M.’s statement little probative value. Thus, in reviewing all the relevant evidence of record, the Board finds that the Veteran’s PTSD most closely approximates the current 50 percent disability rating. Thus, her appeal is denied. See 38 C.F.R. §§ 4.7, 4.130, DC 9411. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel