Citation Nr: 18144024 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-26 015 DATE: October 23, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with alcohol dependence in partial remission is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected PTSD has been manifested by 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. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for PTSD with alcohol dependence in partial remission have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1969 to August 1972. During his period of service, the Veteran earned the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Three Overseas Bars, and Expert Badge (M-16). Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The General Rating Formula provides that a 30 percent rating is warranted 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). A 50 percent rating is warranted where there is 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. A 70 percent rating is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 30 percent rating for his service-connected posttraumatic stress disorder. He contends that a higher rating for his PTSD is warranted. The Veteran appeared for a VA PTSD examination in April 2011. The examiner indicated that the Veteran’s level of occupational and social functioning could be best summarized as transient or mild with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported symptoms that included recurrent distressing dreams; efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; difficulty falling or staying asleep; and irritability or outbursts of anger. The Veteran also reported feeling very anxious around people and when driving. The examiner further noted that the Veteran’s poor sleep, anxiety, and nightmares were related to his stressor exposure. The Veteran most recently appeared for a VA PTSD examination in March 2016. The examiner diagnosed PTSD with alcohol dependence in partial remission. The examiner indicated that the Veteran’s level of occupational and social impairment could be best summarized as 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. The Veteran reported frequent nightmares with panic attacks following his nightmares. The Veteran experienced panic attacks when awake once or twice per week. He also reported daily anxiety and restlessness. The Veteran further indicated that he was easily irritated, impatient, and experienced angry verbal outbursts three to four times a week. He indicated that he experienced passive suicidal thoughts when thinking about Vietnam and friends lost there. He also indicated that he avoided large crowds and was always on alert. He averaged seven hours of interrupted sleep per night. The examiner stated that the Veteran was alert and oriented to person, place, and time. The Veteran’s attention was well sustained. Good eye to eye contact was maintained. The examiner noted good grooming and hygiene, as well as speech with normal rate, rhythm, and fluency. The Veteran was goal directed and no thought disorganization was noted. The Veteran did not report any suicidal nor homicidal ideation. The Veteran’s anxious mood was noted to be congruent to his thinking. His affect was appropriate and full in range. The examiner note that the Veteran’s motor activity was restless and fidgety, with his thinking noted to be linear. The medical evidence also includes VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. In addition to the medical evidence, the Veteran and his spouse have provided written statements regarding his PTSD symptoms. This lay evidence is also consistent with the VA examination reports. Upon review of the medical and lay evidence of record, the Board finds that the evidence does not reflect symptoms that would meet the criteria for a rating in excess of 30 percent for any period of time during the pendency of the claim. There is no evidence of flattened affect; circumstantial, circumlocutory, or stereotyped speech; 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. The Board notes that the presence or absence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. The Board’s determination is not based solely on the listed symptoms. Rather, the treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 50 percent. While the evidence of record demonstrates impairment in occupational and social functioning, it does not show such impairment with reduced reliability and productivity to warrant an increased rating of 50 percent. Indeed, the Veteran denied any acute distress in his social relationships during his April 2011 examination. He reported that he had been married for 38 years with two daughters and two grandchildren. He stated that he had supportive familial relationships. He also reported engaging in social activities such as bowling and throwing horseshoes. At the time of his March 2016 examination, the Veteran reported that he mostly stayed home, as going places made him nervous; however, he also reported that he maintained contact with his children and grandchildren weekly, engaged in monthly phone contact with a friend, and went out with his wife three to four times a week. Although he is currently retired, the Veteran has reported that he experienced panic attacks in the workplace during this period of employment. The social and occupational impairment reported by the Veteran and noted in the VA examination reports is covered by his current 30 percent evaluation. The March 2016 examiner noted that the PTSD symptoms described by the Veteran did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Without evidence of more serious social and occupational impairment, a higher rating of 50 percent or more is not warranted. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 50 percent or more evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Additionally, there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the currently assigned 30 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. (Continued on the next page)   Accordingly, the Board finds that the claim of entitlement to an initial disability rating in excess of 30 percent for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Although the Board is appreciative of the Veteran’s faithful and honorable service to our country, given the record before it, this claim for this period must be denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel