Citation Nr: 18149133 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 12-34 442 DATE: November 8, 2018 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD was most closely characterized by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for a 70 percent disability rating for PTSD have been satisfied from September 2, 2010. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1984 to April 1988. As an initial matter, the Board observes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an initial rating claim when it is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board finds that a claim for TDIU has not been raised either expressly by the Veteran or by the record. During the course of the appeal, the Veteran has demonstrated the ability to secure and maintain gainful employment. A brief discussion of the procedural history in this case is warranted. In the March 2011 rating decision, the Veteran was awarded service connection for PTSD with a 50 percent disability rating, effective the date of claim on September 2, 2010. The Veteran perfected his appeal of the initial rating for PTSD, and in August 2017 the Board of Veterans’ Appeals (Board) denied the Veteran’s claim for a disability rating in excess of 50 percent for PTSD. The Veteran appealed his claim to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the May 2018 amended Joint Motion for Remand (JMR), the Court vacated the August 2017 Board decision that denied the above listed claim, and remanded the matter to the Board for further proceedings consistent with the JMR. 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 benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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 is warranted for 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 of the Board of Veterans’ Appeals (Board) is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. 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 symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” 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, 713 F.3d at 117; 38 C.F.R. § 4.130. The Veteran contends he should have been entitled to an initial disability rating higher than 50 percent for PTSD for the entire period on appeal. See April 2011 VA Form 21-4138; see also November 2014, July 2017, and November 2018 Appellate Brief. The Veteran was afforded a VA initial PTSD examination in January 2011. The Veteran reported frequent avoidance behaviors, in that he rarely socialized, he had no friends, and large crowds caused him to have panic attacks. He also avoided thoughts and feelings about trauma. The Veteran endorsed flashbacks and recurrent nightmares, insomnia, feeling continuously irritated, having outbursts of anger, and feeling anxious and detached from people outside of family. The Veteran reported having an outstanding relationship with his son. He also reported having daily obsessive behavior, such as counting tiles on ceilings and floors, and only crossing cracks in the street with his right leg. The Veteran reported that he had a severe lack of ability to concentrate and had difficulty remembering things, which the examiner indicated moderately interfered with employment and social functioning. The examiner noted that the Veteran did not demonstrate impairment of thought process or communication, or inappropriate behavior, and the Veteran denied delusions, hallucinations, and suicidal or homicidal ideation. The examiner observed the Veteran was able to maintain minimal personal hygiene and other basic activities of daily living. The examiner indicated the Veteran had severe depression, anxiety, sleep impairment, and impaired impulse control that resulted in violent behavior. The Veteran was afforded another VA PTSD examination in June 2015. The examiner indicated that the Veteran was alert and oriented to person, place, date and time, as well as the purpose and context of the VA examination. The examiner observed the Veteran moderately avoided eye contact, and appeared sad with mildly blunted affect. The Veteran indicated he preferred not to be around unfamiliar people, and demonstrated moderate anhedonia. The Veteran reported daily suicidal ideation, racing thoughts, especially related to fear and apprehension of having nightmares, recurring problems with sleep onset, and intrusive memories of trauma when he encountered a trigger or reminder of traumatic events from service. The Veteran reported experiencing his symptoms on a consistent basis, without much variation in his mood. The Veteran indicated that he had some communication and interaction with members of his family. The Veteran reported he had not had any romantic relationships, or interest in having such a relationship, but that he enjoyed spending time with his son at the movies and sporting events, as well as fishing and hunting. The Veteran reported he had been employed full time for the last several years, and that although he got along with colleagues, he preferred to work in solitude. The Veteran indicated his job allowed him to interact with a limited number of familiar people. The Veteran is competent to report on the onset and recurrent symptoms, and the Board finds him credible in this regard. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Upon consideration of the entire record, including the medical and lay evidence, the Board finds that the Veteran’s PTSD has been consistently manifested by symptoms such as suicidal ideation, obsessional rituals that interfere with routine activities, impaired impulse control with outbursts of violence, and difficulty in adapting to stressful circumstances. Collectively, the Board finds that the Veteran’s symptoms are of the type, extent, severity, and frequency that most nearly approximates occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.126. Under the General Rating Formula for Mental Disorders, the Veteran is entitled to an initial rating of 70 percent for his PTSD. 38 C.F.R. § 4.130. The Board finds that total occupational and social impairment, warranting an evaluation of 100 percent, is not demonstrated by the evidence of record at any time during the period on appeal. The Veteran reported having an outstanding relationship with his son throughout the period on appeal, and the Veteran stated he enjoyed activities such as going to the movies and sporting events with his son. The Veteran has not demonstrated 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; disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board recognizes the symptoms listed under the General Rating Formula for Mental Disorders are not exhaustive, but finds that the Veteran’s generalized anxiety disorder was not manifested by symptoms of the severity, frequency, or duration warranting a 100 percent disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Resolving all remaining doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD more nearly approximate the criteria for a rating of 70 percent, but no higher, throughout the period under review. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel