Citation Nr: 20022563 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-63 583 DATE: April 1, 2020 ORDER Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s PTSD was productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2011 to January 2017. The Veteran is seeking entitlement to an increased disability rating for his service-connected PTSD and contends that he is entitled to an evaluation in excess of 50 percent. After a thorough review of the evidence of record, the Board finds that a rating a rating in excess of 50 percent is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s service-connected PTSD has been rated under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. In particular, this Diagnostic Code authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. Ratings are assigned according to the manifestation of particular symptoms. Under Diagnostic Code 9411, a 50 percent rating is warranted where there is evidence of 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. § 4.130, 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); and inability to establish and maintain effective relationships. Id. The next and highest 100 percent rating is warranted for a mental disorder when 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; and memory loss for names of close relatives, own occupation or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran underwent a VA examination for his PTSD in February 2020. Since his prior evaluation, the Veteran denied hospitalizations, mania, obsessions, compulsions, anger, and violence. He reported feeling pretty numb, without passion for anything, inability to focus and anxiety. He experienced nightmares approximately every other night and often has a strong feeling that there is a face in the back of his car even though he knows it is not there. The Veteran denied suicidal and homicidal ideation and plans, but did report thinking about suicide at times. The examiner opined that the Veteran’s PTSD results in occupational and social impairment with reduced reliability and productivity. The Board finds the February 2020 VA examiner’s opinion to be highly probative as it is consistent with the findings of the June 2017 VA examination which also found occupational and social impairment with reduced reliability and productivity. On review of the evidence of record, the Board finds that the Veteran’s psychiatric disorder most closely approximated the criteria for a 50 percent rating. Although the severity and frequency of symptoms varied throughout the appeal, the evidence shows that the Veteran reported chronic sleep impairment, problems with concentration and memory, irritability, occasional panic attacks, aggressive behavior, self-isolation, avoidance of stimuli, hypervigilance, paranoia, and difficulty in establishing and maintaining effective work and social relationships, which corresponds to a 50 percent rating. The Board acknowledges and has considered the statements from the Veteran. In fact, it is these statements that provide the basis, in part, for the evaluation, which indicate a serious mental condition that will clearly cause the Veteran many problems. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran’s PTSD is not manifested by symptomatology that causes at least occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Therefore, the Board finds that the criteria for a higher, 70 percent, rating have not been met. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.