Citation Nr: 21070243 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-29 308 DATE: November 23, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 15, 2021, and in excess of 50 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to April 15, 2021, the Veteran's PTSD has been characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as irritable mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty concentrating; 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 per week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships have not been shown. 2. As of April 15, 2021, the Veteran's PTSD has been characterized by occasional and social impairment with reduced reliability and productivity due to symptoms such as impairment of short-term memory, impaired judgment, difficulty concentrating, disturbances of motivation and mood, irritability, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships; 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, impaired impulse control, or an inability to establish and maintain effective relationships have not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 15, 2021, and in excess of 50 percent thereafter, 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 served on active duty in the United States Air Force from April 1965 to December 1968. The Board of Veterans' Appeals (Board) remanded this matter in April 2021 to obtain updated medical records and medical opinions. The requested development has been completed, as the Regional Office (RO) obtained updated treatment records, offered the Veteran an opportunity to submit additional medical records, and provided a VA examination to determine the current severity of the Veteran's symptoms. The appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings 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. 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Entitlement to a rating in excess of 30 percent for PTSD prior to April 15, 2021, and in excess of 50 percent thereafter The Veteran contends that he is entitled to a 70 percent disability rating throughout the period at issue for his service-connected PTSD. Specifically, he contends that he has had chronic and severe PTSD symptoms that result in irritability and worsening of relationships with his family. He also reported that he feels he would be better if he was not on earth anymore, and he struggles with anger, feelings of detachment, outbursts, depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. The Veteran's psychiatric disorder, diagnosed as PTSD, has been assigned an initial disability rating of 30 percent prior to April 15, 2021 under 38 C.F.R. § 4.130, 9411. As of April 15, 2021, his PTSD has been assigned a 50 percent rating. Id. In order to warrant a 50 percent rating, the evidence must show 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 per 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, DC 9411. In order to warrant a 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family, relationships, judgment, thinking, or mood, due to symptoms such as, but not limited to, suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; 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. Prior to April 15, 2021 After a review of the evidence of record, the Board determines that a rating in excess of 30 percent prior to April 15, 2021 is not warranted. Indeed, while the Veteran had occasional symptoms that could support a higher rating, they did not, on balance, cause social and occupational impairment with reduced reliability and productivity. Specifically, medical records from April 2014 through March 2015 fail to demonstrate symptoms that support a rating in excess of 30 percent under DC 9411. For example, in February 2015, the Veteran's PTSD symptoms were described as "chronic and severe," and his mood was noted as anxious. However, the Veteran was described during this period as pleasant, cooperative, stable, and responding appropriately, and there were no signs of suicidal or homicidal ideation. Furthermore, he reported in February 2015 that he had recently taken a trip to Florida with extended family. These records do not demonstrate any flattened affect, altered speech, panic attacks, or impairment of judgment, abstract thinking, or memory. Furthermore, the ability to take a trip with extended family does not demonstrate difficulty in establishing and maintaining effective work and social relationships as contemplated by a 50 percent rating under DC 9411. Similarly, the Veteran underwent a VA examination in March 2015 which fails to support a rating in excess of 30 percent under DC 9411. The Veteran reported experiencing anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. He reported being upset with politicians and stated that there was significant conflict within his marriage. Additionally, he described feelings of detachment or estrangement from others and irritable behavior with angry outbursts. However, upon examination, despite a generally irritable mood, the Veteran was pleasant, cooperative, neatly dressed, appropriately groomed, had a full range of affect, and had a lucid and organized thought process. His speech was normal and there was no evidence of psychosis. His physical behavior was described as calm and in-control. Furthermore, the Veteran reported that he founded the first chapter of the Vietnam Veterans of America organization, he had been married to his wife for 48 years, he maintained contact with all three of his children, and he described his family relationships as "consistent." Because the examiner examined the Veteran, considered his contentions, and reviewed the evidence of record, and the examiner's opinion is consistent with the predominantly normal mental status examination results throughout the record describing the Veteran as pleasant, cooperative, stable, and having normal memory, thought processes, grooming, and judgment with no evidence of suicidal ideation, the Board finds it highly probative. On balance, these symptoms are more accurately contemplated by the 30 percent rating he is assigned prior to April 15, 2021 because the Veteran's ability to maintain his marriage despite conflict, maintain relationships with his children, and engage in veterans' organizations fails to establish that the Veteran had difficulty establishing and maintaining effective work and social relationships. Furthermore, there was no evidence of altered speech or impaired memory, thought processes, or judgment. Next, the medical records between March 2015 and April 2021 fail to support a rating in excess of 30 percent for PTSD in accordance with DC 9411. In addition to the symptoms already noted, the Veteran intermittently reported emotional distress due to family matters concerning his sons' family lives or health or noted arguing with his wife and stressing over finances. Specifically, in August 2020, the Veteran reported he was struggling with irritability, anxiety, agitation, and increased fighting with his wife. Furthermore, the Veteran also described continued difficulties with poor concentration. Despite these reported symptoms, physical examinations during treatment regularly described the Veteran as pleasant, cooperative, neatly dressed, appropriately groomed, alert, having fluent speech, sitting comfortably, and having no psychomotor agitation. Although physicians observed the Veteran as irritable at times, the Veteran engaged in discussions and responded appropriately during appointments. He also consistently denied suicidal ideation or paranoid or delusional thinking. The normal cognitive functioning and observed pleasant and cooperative behavior are not consistent with impaired judgment, impaired abstract thinking, regular panic attacks, altered speech, and difficulty maintaining effective work and social relationships contemplated by a 50 percent rating. Furthermore, his medical records described the Veteran as insightful and motivated with an ability to communicate. It was noted that the Veteran had healthy coping mechanisms, leisure interests, and family, community, and spiritual support. He described his family relationships as meaningful and reported that he had a strong desire to live with no history of suicidal ideation or attempts. He also reported getting along with his neighbors and doing well once he moved down south around October 2020. Overall, while the Veteran may have exhibited some symptoms of a higher rating, including disturbances of motivation and mood and difficulty maintaining a conflict-free marriage with his wife, a holistic review of the Veteran's symptoms, especially in light of the Veteran's logical speech and thought processes without any signs of panic attacks, impairment of memory, impaired judgment, or impaired abstract thinking, are better categorized by the 30 percent rating he is assigned prior to April 15, 2021. See Vazquez-Claudio, 713 F.3d at 112, 115-17 (2013). 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 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 understanding complex commands or establishing and maintaining effective relationships that may cause reduced reliability and productivity. In this regard, the Veteran's was able to maintain relationships with family and neighbors, sustain his marriage for more than five decades, move out of state, and engage in leisure activities. Even factoring in other relevant criteria outside of the rating code, the evidence supports that the Veteran's symptoms prior to April 15, 2021 were best contemplated by the 30 percent rating he is assigned, as his depressed mood, anxiety, suspiciousness, and chronic sleep impairment only resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. See Mauerhan at 444. As of April 15, 2021 After a review of the evidence of record, the Board determines that a rating in excess of 50 percent as of April 15, 2021 is not warranted. Indeed, while the Veteran has occasional symptoms that could support a higher rating, they do not on balance cause social and occupational impairment with deficiencies in most areas of his daily living. First, during an April 2021 VA examination, the Veteran reported experiencing anger, feelings of detachment, irritability, angry outbursts, depression, anxiety, suspiciousness, and chronic sleep impairment. He also reported mild memory loss, fatigue, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. Furthermore, the Veteran reported that he is estranged from his daughter and feels anger toward the government regarding Vietnam and political situations. Finally, he reported feeling as though he would be better if he was not on earth anymore. Upon examination, the Veteran's mood was anxious, and his affect was congruent to his thought content. However, he reported that he has a positive relationship with his sons and attempted to send his daughter a letter. He also revealed that he resides in a golfing community and has a veteran neighbor that he has connected with. Although the Veteran reported frequent arguments with his wife, he denied any physical aggression. On balance, the Veteran's reported symptoms and additional factors outside of the rating criteria of DC 9411 reveal that his symptoms as of April 15, 2021 do not rise to the level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Specifically, although he reported frequently arguing with his wife, he denied that it becomes physical, which is more consistent with the impaired judgment contemplated by a 50 percent rating rather than impaired impulse control such as unprovoked irritability with periods of violence. Furthermore, his ability to maintain positive relationships with his sons and neighbor and his attempts to connect with his daughter do not demonstrate an inability to establish and maintain effective relationships contemplated by a 70 percent rating. Furthermore, there is no evidence of obsessional rituals which interfere with routine activities, speech intermittently illogical, or near-continuous panic or depression affecting his ability to function independently, appropriately, or effectively. Although the Veteran reported that he has feelings that it would be better if he were not on earth anymore, the Board reiterates that it is the Veteran's overall psychiatric profile that is considered, and there are no "tripwire" symptoms that would trigger a higher rating per se. Of particular note, the Veteran specifically denied suicidal ideation, intent, or plan during the examination, and he has consistently denied a history of suicidal ideation throughout the record, indicating that these feelings are rare and not indicative of his normal level of functioning. As such, while the Veteran may experience infrequent feelings of not wanting to be alive, this is not enough to warrant a 70 percent rating on its own. Rather it is the whole disability picture that is considered. In the Board's judgment, the Veteran's whole disability picture does not represent a level of impairment commensurate with a 70 percent disability rating. The evidence of record beyond the VA examination also does not show the level of impairment contemplated by a 70 percent rating. Medical records from April 2021 through October 2021 indicate that the Veteran reported irritability, insomnia, and significant frustration at times, particularly related to the pandemic and political events. However, he also noted in August 2021 that he is doing "ok," and he denied any suicidal ideation. Mental status examinations reveal grossly normal affect, good eye contact, good hygiene, grossly intact memory and concentration, intact insight and judgment, and linear and logical thought processes. The Veteran was described as cooperative, and there was no evidence of delusional thinking, hallucinations, or psychomotor agitation. Overall, while the Veteran may exhibit some symptoms of a higher rating, including irritability, anxiety, and bouts of anger, a holistic review of the Veteran's symptoms, especially in light of his clear and logical speech and thought processes without any signs of psychosis, obsessive rituals, thought disorder, neglect of personal appearance and hygiene, hallucinations, or delusions, are better categorized by the 50 percent rating he currently receives. See Vazquez-Claudio, 713 F.3d at 112, 115-17 (2013). Next, considering other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment, the evidence fails to support a 70 percent rating. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). Although the Veteran and his wife argue, they have been married for more than five decades, and the Veteran maintains, or attempts to maintain, relationships with all of his children, even describing his relationships with his sons as "positive." He also lives in a golf community and has a friendship with his veteran neighbor. Therefore, the evidence demonstrates that his level of social and occupational impairment is not deficient in most areas, even when factoring in other relevant criteria outside of the rating code. See Mauerhan at 444. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran, his wife, and his friend that his service-connected psychiatric disorder is worse than the ratings he currently receives, including that his disabilities cause impairment of his activities of daily living. 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 and his spouse and friend are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses, they are not competent to identify a specific level of disability of the Veteran's service-connected disabilities 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 disorders 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. Finally, the Board acknowledges the holding in Rice v. Shinseki 22 Vet. App. 447 (2009), that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this regard, the Board observes that the Veteran has not worked since he retired in 2008. Further, while the Veteran has some occupational limitations due to his psychiatric disability, as discussed, the Veteran does not allege, and the record does not otherwise reflect, that he has been unable to work due to his service-connected psychiatric disability. Of note, the Veteran filed a claim for TDIU in November 2014, specifically alleging that he is unable to work due to his service-connected ischemic heart condition, but he did not assert that these problems were related to his service-connected psychiatric disability. Therefore, a TDIU claim is not raised by the record. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board concludes that the weight of the evidence is against the claim for increased rating and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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 K. Veltri, Associate Counsel