Citation Nr: 20007253 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-15 179 DATE: January 28, 2020 ORDER A rating in excess of 70 percent for an acquired psychiatric disorder, to include Post-traumatic stress disorder (PTSD), depression, and anxiety, is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s psychiatric disorder was manifested by occupational and social deficiencies in most areas; there is no showing of total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for a psychiatric disorder, characterized as PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service duty from March 2008 to May 2012. Increased Rating 1. Entitlement to a rating in excess of 70 percent for (PTSD), depression, and anxiety The Veteran is seeking an increased rating for his psychiatric disability. Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying 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. 38 C.F.R. § 4.7. The Veteran’s psychiatric disorder has been assigned a disability rating of 70 percent under 38 C.F.R. § 4.130, DC 9411. To warrant the next higher 100 percent rating, the evidence must demonstrate total occupational and social impairment due to such 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/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. After a review of the evidence of record, the Board determines that a rating in excess of 70 percent is not warranted for any period on appeal. Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms on balance do not otherwise cause total occupational and social impairment. Specifically, in a December 2017 initial psychiatric examination, the Veteran was noted as cooperative with blunted affect as well as sad and anxious mood. He exhibited normal rate and rhythm to his speech. He was seemingly a well-nourished man casually and neatly dressed. The Veteran appeared to be attentive but very fidgety on examination. He did not display a thought disorder, hallucinations, delusions, obsessive ritualistic behavior, panic attacks, inappropriate behavior or homicidal ideation. Further, there was no evidence of gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and/or intermittent inability to perform activities of daily living. However, the examination noted that the Veteran had psychiatric hospitalizations in the past. Similarly, the findings from the Veteran’s May 2019 VA examination does not support a higher rating of 100 percent. Here, the Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting, and impaired impulse control. However, while some of these symptoms could support a higher rating, the Veteran’s symptoms on balance do not represent the level of total impairment contemplated by the diagnostic code, given that the Veteran was attentive and cooperative. His cognitive and intellectual functioning were logical. There was no evidence of delusions, hallucinations, gross impairments or behaviors, homicidal thoughts, or a thought disorder. As such, the examiner opined that the Veteran’s psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. Moreover, the Board notes that the Veteran’s private treatment records do not provide additional information supporting the Veteran’s claim for a higher rating. His treatment records solely reiterate the Veteran’s PTSD diagnosis but does not provide additional information regarding his symptoms. 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 70 percent for the period on appeal. Specifically, the Board finds that the Veteran did not exhibit gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. As such, there is insufficient evidence that the Veteran’s symptoms are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Next, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and/or disorientation to time or place. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). In this regard, while the Veteran’s disorder reflects a moderately severe overall impact on his social and occupational functioning, he does not have total occupational and social impairment. Specifically, the December 2017 and May 2019 VA examinations reflect that the Veteran reported social isolation. However, he nevertheless maintained a relationship with a significant other and reported having a good relationship with his grandparents on an August 2011 treatment record. Further, the Veteran reported that he was able to perform activities of daily living and household chores such as babysitting and cleaning on his December 2017 evaluation. Therefore, on balance, he did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code. Mauerhan, 16 Vet. App. at 444. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected psychiatric disability 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While 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 diabetes according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s psychiatric disability have 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 his psychiatric disability is evaluated. Therefore, in conclusion, the Board concludes that a rating in excess of 70 percent is not warranted. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. McGee, Associate Counsel