Citation Nr: 21008530 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-65 318 DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for PTSD is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability and productivity. It has not been manifested by occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1993 to August 2000. He appeals a February 2016 rating decision granting entitlement to service connection for PTSD with a 50 percent rating. In September 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has 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). Further, “[w]here 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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 50 percent for PTSD The Veteran is currently in receipt of a 50 percent disability rating for his PTSD. He requests a higher rating. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide for the following ratings: 50 percent – Occupational and social impairment with reduced reliability and productivity due to symptoms such as, but not limited to, 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. 70 percent – Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as, but not limited to, 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 worklike setting); inability to establish and maintain effective relationships. 100 percent – Total occupational and social impairment, due to such symptoms such as, but not limited to, 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. After a review of the evidence, the Board determines that a rating in excess of 50 percent is not warranted. Specifically, the Veteran was afforded a VA examination in June 2017 to assess the severity of his PTSD. The examiner noted that the Veteran had obsessive compulsive disorder that manifested as counting behavior. However, the Veteran reported that it was limited to behaviors such as counting ceiling tiles with limited interruption to his daily affairs. The examiner also noted that the Veteran had difficulty in adapting to stressful circumstances, including work or a work-like setting. However, the Veteran is able to maintain a full-time job as a Senior Project Manager for an environmental company. He does report receiving a bad review due to his contentious behavior. However, he agreed to be reevaluated after 60 days and received a more favorable review. The Veteran also reported attending a Veterans Helping Veterans group for two years which has helped him greatly and prevented him from “running away” from his responsibilities as a father and provider. After evaluation of the Veteran, the examiner opined that he had occupational and social impairment with reduced reliability and productivity. In support of his claim, the Veteran submitted a private psychological evaluation from April 2017, which he argues clearly shows that a disability rating of 70 or even 100 percent is warranted. The Board disagrees. The examination does not demonstrate that the Veteran’s symptoms rise to the level of occupational and social impairment with deficiencies in most areas. Notably, the numerous symptoms noted on the disability benefits questionnaire (DBQ) are not reflected in the accompanying report. For example, at one point the examiner noted panic attacks occurred weekly or less often, yet later noted panic attacks occurred more than once per week. The report does not resolve this conflict as the Veteran merely reported that the attacks are becoming more frequent. The examiner also noted symptoms such as gross impairment in thought processes or communication, speech intermittently illogical, obscure, or irrelevant, and grossly inappropriate behavior. However, in his report, the examiner only observed that the Veteran’s ability to communicate with others is diminishing and inappropriate behavior is increasing. No further details were provided. In addition, the examiner found the Veteran exhibited persistent delusions or hallucinations. However, at his September 2020 hearing, he clarified that these were “things moving in his peripheral vision” when he becomes agitated, and were “very mild”. The examiner also found the Veteran was unable to establish and maintain effective relationships. However, the Veteran has maintained a near 30-year relationship with his wife, has several close friends from childhood, and reported a loving, though contentious, relationship with his children. Although the examiner noted occasional suicidal ideations in the past, the Veteran clarified at his hearing that he has simply thought his family would be better without him at times and would never hurt himself. Based on the foregoing medical evidence, the Board finds that the severity of the Veteran’s PTSD symptoms do not rise to the level contemplated by a 70 percent rating. Therefore, a disability rating higher than 50 percent is not warranted. 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 not be limited to only these symptoms, but 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. The Board observes that the Veteran’s social and occupational functioning is indeed impacted by his PTSD. However, the evidence does not indicate that a rating in excess of 50 percent is warranted. In this regard, the Veteran reports that he suffers problems with authority and supervision, periods of marital discord, impulse control problems, chronic sleep impairment, and an excessive need to protect his family. Yet, he maintains a full-time job in a supervisory role, and maintains a loving relationship with both his wife and children. Although he reports that he does less with his friends than he used to, the evidence does not show that he completely isolates, as noted by his continuous participation in the Veterans Helping Veterans group. As it stands, the evidence does not show that the Veteran’s PTSD symptoms result in occupational and social impairment in most areas. Hence, the Board finds that the Veteran is adequately compensated by his current 50 percent rating for PTSD. In considering the appropriate disability ratings, the Board has also considered the assertions of the Veteran and his representative that his PTSD is worse than the rating he currently receives. Specifically, he reports confrontation issues at work, a deteriorating social life, and obsessive-compulsive behaviors. 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 acquired psychiatric disability 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 PTSD 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. Therefore, based on the evidence of record, the Board determines that a 50 percent rating is warranted for the Veteran’s PTSD for this period. In summation, the evidence shows that the Veteran’s PTSD symptoms have not risen to the level of social and occupational impairment with deficiencies in most areas. As such, a disability rating in excess of 50 percent is not warranted and the claim 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 Daniel Ballinger, Associate Counsel