Citation Nr: 21010592 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-33 604 DATE: February 25, 2021 ORDER Entitlement to an evaluation for posttraumatic stress disorder (PTSD) in excess of 50% is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected PTSD more closely approximates a level of disability characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1987 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran participated in a Travel Board Hearing in April 2019. A copy of the transcript is associated with the record. The issue of a decreased rating for PTSD was addressed in an October 2019 Board decision, and the issue of an evaluation for PTSD in excess of 50 percent was remanded for further development. See October 2019 Board decision. The matter of an evaluation of PTSD in excess of 50 percent is returned to the Board for further action. 1. Entitlement to an evaluation for posttraumatic stress disorder (PTSD) in excess of 50% The Veteran contends that his PTSD symptoms warrant a rating higher than 50 percent. See April 2019 Board hearing transcript. Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability ratings are based on an evaluation of 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. 38 C.F.R. § 4.126. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The claim for an increased rating for his PTSD was filed by the Veteran in June 2013. Therefore, the relevant temporal focus for evidence that is factually ascertainable regarding this disability includes evidence from June 2012. See 38 C.F.R. § 3.400(o)(2). The Veteran’s PTSD condition was evaluated under 38 C.F.R. § 4.130, DC 9411. In pertinent part, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings: A 30 percent rating is appropriate 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). Id. 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 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); inability to establish and maintain effective relationships. Id. A 100 percent rating reflects 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; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the primary consideration is a Veteran’s symptoms, but VA must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A Veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The listed symptoms are not exhaustive but “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d at 117; 38 C.F.R. § 4.130. Staged ratings are appropriate for an increased 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). In the present case, the Veteran was observed with PTSD “symptoms” in 2011, namely “hyperarousal with difficulty sleeping, irritability.” See March 2011 VA Mental Health Team Conference Note. At that time, the prognosis was that, “The Veteran’s symptoms and overall level of functioning will sufficiently improve.” The treatment plan was “re-establishing an appropriate sleep pattern.” See April 2011 VA Mental Health Treatment Plan Note. A July 2013 VA treatment note documented, “History of PTSD / Anxiety…No chronic active medications.” See July 2013 VA Primary Care Outpatient Note. The Veteran indicated in February 2011 that he “wants to try to stay off meds…PTSD, anxiety – stable off meds.” See February 2011 VA Primary Care Outpatient Note. In March 2014, the Veteran participated in a VA examination. He was determined to have, “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” The Veteran also expressed “outbursts due to low income and not being able to spend more time on leisure or vacation activities.” See March 2014 VA PTSD examination report. Another VA examination was performed in April 2014. The examiner documented, “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” See April 2014 VA PTSD examination report. An August 2015 VA treatment note documented “intermittent anxiety and depression” and went on to state, “(Veteran) sees mental health only a few times a year, if needed, and says he has been doing very good for (the) past couple of years.” See August 2015 VA S/O Note. Two November 2015 PTSD screening tests (PTSD 4Q) were negative, one with a score of 2, and the other with a score of 0. See November 2015 VA Primary Care Outpatient and Nursing Outpatient Notes. In November 2016, the Veteran reported “recent panic attacks 2-3 times per week that include sweating, rapid heartbeat, rapid breathing, and feeling ‘fidgety and edgy.’” The Veteran also indicated “increased stress from financial stressors (e.g., recent late mortgage payment) and family matters (e.g., mother is in poor health, wife has inconsistent employment).” See November 2016 VA Mental Health Triage Note. At a November 2017 VA psychological assessment, treatment providers recorded, “At one point, Veteran met full criteria for a Panic Disorder, but due to his compliance, commitment to treatment, and continued practice, it appears those symptoms of panic attacks have remitted…continues to struggle with anxiety, for which he uses avoidance strategies in order to cope.” See November 2017 VA Psychological Assessment Addendum. The Veteran provided his own psychological assessment in August 2020. While the private examiner did not have the benefit of reviewing the Veteran’s claim file, she nonetheless diagnosed “Adjustment D/O with depressive and anxious features…occupational and social impairment with reduced reliability and productivity.” The examiner also noted “some stress in the marriage related to Veteran fatigue and emotional responses to situations at work.” Finally, the report documented, “Sleep quality and quantity is poor, with difficulty falling and remaining asleep.” See August 2020 Mental Disorders Evaluation and Independent Medical Opinion. Additionally, a September 2020 VA examination was performed for the Veteran. The examiner concluded, “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” See September 2020 VA PTSD examination report. The Board finds that the private report from the Veteran’s psychologist is consistent with the other medical evidence of record regarding symptoms, including “depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.” The Board also finds that the Veteran’s psychologist adopted a category of impairment associated with criteria in the 50 percent evaluation under 38 C.F.R. § 4.130. See August 2020 Mental Disorders Evaluation and Independent Medical Opinion. The symptoms noted by the Veteran’s psychologist, “Impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships” are all criteria associated with an evaluation of 50 percent under 38 C.F.R. § 4.130. Further, the opinion provided by the Veteran’s psychologist did not adopt the criteria, “Occupational and social impairment with deficiencies in most areas,” which is associated with a 70 percent evaluation under 38 C.F.R. § 4.130. See 38 C.F.R. § 4.130. The medical evidence of record does not demonstrate that the Veteran is of such limited occupational and social impairment as to associate his symptoms with the criteria in a 70 percent evaluation. The Board finds that a 50 percent disability rating adequately contemplates the symptoms of the Veteran’s PTSD. In reaching this conclusion, the Board has considered the overall disability picture demonstrated by the record to arrive at the appropriate evaluation in this case. A preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 50 percent for PTSD under 38 C.F.R. § 4.130, DC 9411, for the relevant appeal period. The treatment records, the March 2014, April 2014, and September 2020 VA examinations, and the August 2020 independent medical opinion are the most probative evidence of record on the question of entitlement to an increased rating. The opinions were based on an extensive review of the available evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and they provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA and non-VA treatment notes are consistent with the medical examinations and the evidence of record. The examiner opinions provide compelling evidence against the Veteran’s claim for increase. There is no competent, credible evidence to refute the treatment notes or the examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to a disability rating in excess of 50 percent for PTSD. In summary, a clear preponderance of the evidence of record indicates the Veteran does not meet the relevant diagnostic criteria under 38 C.F.R. § 4.130, DC 9411, for entitlement to a disability rating in excess of 50 percent for PTSD during the relevant appeal period. Additionally, the Board has also considered whether the Veteran is entitled to an increase at either the 70 percent or 100 percent levels. There, the evidence does not approximate symptoms like those described for each level of disability. Therefore, this claim for increase must be denied. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements regarding the severity of his PTSD. The Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., anxiety and lack of sleep. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through examinations, in addition to hearing testimony, throughout the course of his appeal with respect to the presence of his PTSD symptoms. He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible. The Veteran’s reported symptomatology has been noted in the rating decisions, and the Board has considered the Veteran’s reports with respect to symptoms in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”) In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Finally, the Veteran has not contended, nor does the evidence demonstrate, that this disability or his other service-connected disabilities render him unemployable. The Veteran indicated that he is employed full-time as a police officer at the Pearl Harbor Naval Base. See January 2020 VA S/O Note and August 2020 Mental Disorders Evaluation and Independent Medical Opinion. The Veteran has been at   his present place of employment for 20 years and reports no difficulty getting along with his coworkers or with his Chief Captain. See March 2014 VA PTSD examination report. The issue of a total rating based on individual unemployability has not been raised at any time during this appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.