Citation Nr: 18140580 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-37 870 DATE: October 4, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s PTSD was manifested with occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION In August 2015, the Veteran verbally indicated an intent to withdrawal this appeal. In August 2018, the Board sent a withdrawal clarification letter to the Veteran and he did not respond. As no response was provided by the Veteran regarding his desire to withdrawal the instant appeal, the Board will adjudicate the claim on the merits. The Veteran contends in his substantive appeal that his PTSD symptoms are consistent with a 50 percent rating. As the Veteran does not contend, and the evidence does not support any higher rating, the rating criteria over 50 percent will not be discussed. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise the lower rating will be assigned. Id. The Veteran’s PTSD is currently rated under Diagnostic Code 9411 as 30 percent disabling. Diagnostic Code 9411 provides that a 50 percent rating is warranted 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. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Ratings are assigned according to the manifestation of particular symptoms, but the use of a term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability rating to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan, 16 Vet. App. at 442. Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The November 2014 VA PTSD examination found active symptoms of anxiety and chronic sleep impairment. Overall, the examiner found that the Veteran’s symptoms amounted to occupational and social impairment due to mild or transient symptoms, with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Board finds that the most probative evidence of record is the November 2014 VA examination, as it is the only medical opinion of record. Consequently, the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s symptomology corresponds with the 30 percent rating criteria. In reaching this decision, the Board has considered the 2008 private treatment records, which were for treatment not related to military service, and they do not indicate symptoms corresponding to the 50 percent rating criteria. The Veteran contends that the VA examination is inadequate due to not considering his reported panic attacks and medication management of his symptoms with variable efficacy. The Board disagrees. The VA examiner’s report detailed, almost verbatim, the Veteran’s report of anxiety and panic upon leaving the house, as well as his history with Adderall. The VA examiner found that anxiety was an active symptom, and considered the fact that the Veteran was on Adderall. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Board will not substitute the lay judgment of the Veteran, with that of a medical professional, in determining whether subjective symptom reporting amounted to active symptoms resulting in occupational and social impairment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that “BVA panels may consider only independent medical evidence to support their findings”). The Veteran has not presented or identified any contrary medical opinion or treatment that supports that a 50 percent rating is warranted. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin, supra; Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board has also considered the lay statements by the Veteran regarding the impact of his PTSD on his occupational and social impairment. These statements do not support a rating in excess of 30 percent. His lay contentions do not constitute competent evidence, when viewed against the other evidence of record. The record indicates that the Veteran had maintained stable employment since July 2010 and denied any problems in the workplace. He also began taking online classes to pursue a bachelor’s degree. He was able to form a relationship that resulted in marriage in June 2013, and continued to maintain close contact to his parents and siblings. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent at any time during the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel