Citation Nr: 21010132 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 190318-6255 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT During the appeal period, the Veteran’s PTSD has been characterized by suspiciousness, chronic sleep impairment, and flattened affect; occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) have not been met. 38U.S.C. §§1155, 5107; 38C.F.R. §4.130, DC 9411 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to October 2001. In September 2019, the Board denied the Veteran’s claim for service connection for posttraumatic stress disorder. The Veteran appealed the decision to the CAVC which, in October 2020, vacated the decision and remanded it for further development. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is appropriate “where the record is otherwise inadequate”). 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 50 percent for posttraumatic stress disorder (PTSD) The Veteran currently receives a 50 percent rating for PTSD under 38C.F.R. §4.130, DC 9411. He contends that he is entitled to a higher rating. In order to warrant a 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to symptoms such 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; and difficulty in establishing and maintaining effective work and social relationships. 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 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. 38C.F.R. §4.130, DC 9411. Based on the evidence of record, the Board finds that a rating in excess of 50 percent is unwarranted. Initially, the Board notes that the Veteran has not sought out psychiatric treatment. As a result, his described psychiatric symptoms are limited to those reported during his VA examination and a private psychological evaluation. First, the report from the Veteran’s June 2015 psychological evaluation from Psychological Associates of Melbourne indicates that the Veteran’s impulse control and thought and content were within normal limits. The Veteran’s speech was normal in manner and content, his mood was good, and neither suicidal or homicidal ideation, nor perceptual abnormalities consistent with psychosis were shown. The examining psychologist noted that the Veteran was blunted but stable during the evaluation. During the evaluation, the Veteran described experiencing recurrent intrusive thoughts, demonstrated marked problems with insomnia, a past history of hypervigilance, and an exaggerated startled response. The Veteran exhibited mild symptoms of PTSD during his January 2016 VA examination. The examiner noted that the Veteran had no psych or mental health treatment history and he exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Under criteria E, the examiner noted that the Veteran demonstrated irritable behavior and angry outbursts, with little to no provocation, which are typically expressed as verbal or physical aggression toward people or objects. Upon examination, the examiner noted that the Veteran’s cognitive function suggests average capacity in domains or memory and executive function, and no psychotic thoughts, suicidal or homicidal ideation, or hallucinations/ delusions were reported. Additionally, the examiner noted symptoms such as suspiciousness, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, obsessional rituals which interfere with routine activities. Nevertheless, these symptoms are all explicitly contemplated in the 50 percent rating criteria. There are no indications that he had near-continuous depression, which would be a relevant factor for a 70 percent. Indeed, despite the severity of the Veteran’s psychiatric disorder, there have been few reports of the symptoms listed in the criteria for a 70 percent rating. While the Board notes that the Veteran was observed to exhibit symptoms of obsessional rituals which interfere with routine activities and irritable behavior and angry outburst toward people or objects at his January 2016 VA examination, those symptoms, in the Board’s view, do not equate to the symptom listed under the 70 percent rating of impaired impulse control (such as unprovoked irritability with periods of violence). Moreover, even if what was observed at the VA examination represented a characteristic listed in the criteria for a 70 percent rating, the Board reiterates that it is the overall disability picture that matters. Having single symptoms noted in the 70 percent criteria is not treated as a “tripwire” for a higher evaluation. Thus, a preponderance of the evidence is against a finding that a 70 percent rating is warranted. Additionally, while the Veteran may exhibit some obsessional rituals, there was little indication that this impacts his daily living. Indeed, based on the observations of this VA examiner, when taken in their totality, a rating 30 percent is likely a more accurate assessment. However, the Board will not disturb the 50 percent rating he currently receives. 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 social and occupational inadaptability. There is insufficient evidence to show that a 70 percent rating is warranted based on overall social or occupational impairment. There is insufficient evidence to show that a 70 percent rating is warranted based on occupational and social impairment with deficiencies in most areas. In this regard, the January 2016 examiner noted that the Veteran suffers from occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Here, the Veteran has been married to his wife for over 26 years and reported that he is emotionally close to his wife and another friend. Additionally, the Veteran reported a beautiful relationship between himself and his sons. Further, the Veteran is currently self employed as a landscaper. Therefore, the Veteran does not meet the criteria required for a 70 percent rating. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his disabilities are 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 specific levels of 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 disabilities 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 the disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a rating in excess of 50 percent for the Veteran’s PTSD is not warranted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica