Citation Nr: 21005870 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-42 933 DATE: February 2, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to May 12, 2014 for acquired psychiatric disability to include posttraumatic stress disorder (PTSD), and in excess of 70 percent from May 12, 2014 and thereafter is denied. FINDINGS OF FACT 1. Prior to May 12, 2014, the Veteran’s service connected PTSD manifested by 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); there was no showing of occupational and social impairment with reduced reliability and productivity. 2. From May 12, 2014, the Veteran’s service-connected PTSD manifested by no more than occupational and social deficiencies in most areas; there was no showing of total occupational and social impairment. CONCLUSIONS OF LAW The criteria for Entitlement to a rating in excess of 30 percent prior to May 12, 2014 for an acquired psychiatric disability to include posttraumatic stress disorder and in excess of 70 percent from May 12, 2014 and 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 FINDINGS AND CONCLUSIONS The Veteran served in the Army from December 1964 to September 1966. This appeal was previously remanded by Board in March 2019 for a new VA examination. After further development this matter is now ready for adjudication. The Board notes that the Veteran has a separate appeal addressing the issues of entitlement to service connection for colon cancer, prostate cancer and thyroid cancer, but has stated his desire to testify at a hearing on the record before a Veterans Law Judge. As this hearing is yet to be scheduled, they are not addressed here. Increased Ratings 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 illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those 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). When 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. When 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 30 percent prior to May 12, 2014 for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) and in excess of 70 percent from May 12, 2014 and thereafter The Veteran is presently service connected for PTSD. His disorder is rated as 30 percent disabling for the period prior to May 12, 2014 and 70 percent for the period from that date. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted for 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for 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. Id. 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. In order to warrant a 100 percent rating, the evidence must show 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/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 examination. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 Prior to May 12, 2014 Based on the evidence of record, a rating in excess of 30 percent is not warranted for the period prior to May 12, 2014. Specifically, during this period, the record indicates that the Veteran’s symptoms did not rise to the level of occupational and social impairment with reduced reliability and efficiency. Initially, the report from the August 2012 VA examination shows that a disability rating in excess of 30 percent is not warranted because it does not show that his PTSD was manifested by occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran’s PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency. Additionally, the examiner reported that the Veteran’s PTSD manifested itself through symptoms of anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood. While the examiner noted that the Veteran experienced mild-moderate psychiatric symptoms, there is no indication on examination that the Veteran displayed improper hygiene and grooming, spatial disorientation, disorientation to time or place, or grossly inappropriate behavior. The examination report also does not reflect that the Veteran experienced hallucinations, delusions, illusions, paranoias, or other psychotic manifestations. Further, the Veteran had no history of suicidal attempts, no current suicidal thoughts, no psychiatric hospitalizations and was capable of managing his finances. The Board finds that the August 2012 VA examination confirms that a rating in excess of 30 percent is not warranted. Specifically, the Veteran’s description of his PTSD show that he experiences anxiety, suspiciousness, panic attacks, mild memory loss, and disturbances of motivation and mood. Indeed, while the Veteran had occasional symptoms such as panic attacks, and disturbances in motivation and mood, that could support a higher rating, his symptoms did not otherwise cause occupational and social impairment with deficiencies in most areas. Specifically, his VA examinations and post-service treatment records provide objective evidence that his symptomatology is most consistent with the criteria for a 30 percent rating. Additionally, there are no treatment records contemporaneous with or subsequent to the August 2012 VA examinations demonstrating that a rating in excess of 30 percent for the Veteran’s PTSD is warranted. For example, psychosocial screenings conducted in August 2006 and March 2010 were both negative for PTSD. Indeed, while the Veteran has occasional symptoms that do not meet the criteria for the higher 50 percent rating, the Board determines that on balance, the evidence highly reflects symptoms with the nature, frequency, and severity of a 30 percent rating. By virtue of the foregoing, the Board concludes that the Veteran has not met the criteria for a rating in excess of 30 percent for an acquired psychiatric disability prior to May 12, 2014. From May 12, 2014 Since May 12, 2014, the Veteran’s acquired psychiatric disability has been assigned a 70 percent disability rating under 38 C.F.R. § 4.130, DC 9411. To warrant the maximum 100 percent rating, the evidence must demonstrate total occupational and social impairment due to 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. Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms do not otherwise cause total occupational and social impairment. Specifically, in an August 2014 VA examination, the examiner found that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. However, the examiner noted no significant changes in the Veteran’s psychosocial circumstances since his previous examination in 2012, except his occupational circumstances as he retired in April 2014. The examiner noted that the Veteran exhibited symptoms depressed mood, anxiety, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships. Upon examination, the Veteran’s thought process was rational, and goal directed with no evidence of a thought disorder, hallucinations or delusions. During the examination, the Veteran oriented x 3, his basic cognitive functioning was grossly intact, his mood was mildly distressed, and his affect was mildly constricted, but otherwise appropriate for the current circumstances. The examiner noted evidence of an increase in overall severity compared to last exam, however it remains generally moderate. The Veteran is clearly experiencing an increase in frequency and intensity of his nightmares/flashbacks, increase in irritability, and increase in hypervigilance along with social distress/avoidance, increase in isolation, and ongoing sleep disturbance. The examiner concluded that the Veteran’s ability to enjoy daily activities has been further compromised, possibly due to the Veterans recent retirement. The Veteran underwent additional VA examinations in June and July 2019. The Veteran reported that he spends times with friends, has a great relationship with his wife, and is close to his two daughters and sister. He further reported that he likes to work around the house. The examiners found that the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, panic attacks occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances motivation/mood, difficulty in adapting to stressful circumstances, including work/worklike setting, obsessional rituals. The examiner noted that while the Veteran has nightmares about Vietnam 4-5 times a week, his mental health is stable. Additionally, the Veteran goes to Rome, NY, for VA psychiatry and has no suicidal ideations/psychiatric hospitalizations. Upon examination, the Veteran was pleasant, neatly and casually dressed. His mood was anxious, affect consistent with mood, thought processes, orientation, memory, speech and fine motor patterns were within normal limits. The Veteran denied current suicidal and homicidal ideations and attempts. The Veteran’s August 2014, June 2019, and July 2019, VA examinations reflects symptoms that are at most consistent with the criteria for a 70 percent rating. His treatment records do not express evidence of gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, suicidal ideations, persistent danger of hurting self or others, and/or intermittent inability to perform activities of daily living. In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would warrant a rating in excess of 70 percent for the period on appeal. Specifically, 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. See Mauerhan, 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, while the August 2014 VA examination reflect that the Veteran experienced an increase in social distress/avoidance and increase in isolation, nevertheless, he maintains a close relationship with his wife, children, and sister. Further, the Veteran reported that he spends time with his friends and likes to work around the house. Therefore, 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. 436, 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. In conclusion, the Board finds that the Veteran’s PTSD symptoms from to May 12, 2014 and thereafter, does not reflect a severity high enough to warrant a higher rating. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica