Citation Nr: 18154481 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-41 352 DATE: November 30, 2018 ORDER Entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD is not manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 70 percent for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1968 including service in the Republic of Vietnam. He is in receipt of a Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, NC. Increased Rating 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 evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 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 evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim whenever 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. 50 (2007). Entitlement to a rating in excess of 70 percent for service-connected PTSD The Veteran was initially awarded service connection for PTSD by way of a March 2013 rating decision. A 70 percent rating was assigned with an effective date of April 30, 2012. The Veteran claimed his PTSD worsened and requested an increase in his rating in October 2015. Thus, the issue currently before the Board is whether a 100 percent disability rating is warranted during the appeal period. Under the General Rating Formula For Mental Disorders, 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; 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. A 100 percent rating is warranted when 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 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 the claimant’s social and work situation. Id. As noted above, a 100 percent evaluation, the next higher rating available after the 70 percent disability rating, is warranted when there is evidence of total occupational and social impairment. The evidence of record does not show that the Veteran had such total occupational and social impairment due to PTSD. The Veteran sought treatment at several VA and private medical clinics, in addition to attending group therapy for his service-connected PTSD. He was also afforded several VA examinations, in November 2012, November 2015, March 2018 and October 2018; none of the examiners found that the Veteran had total occupational and social impairment due to PTSD symptoms. Additionally, the Board finds that the content of the post-service VA and private medical records are generally consistent with those made during the VA examinations reports throughout the appeal period. The Board finds that the preponderance of the evidence of record, to include VA medical records and VA examinations, generally do not demonstrate symptoms associated with the 100 percent evaluation, such 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); or disorientation to time or place. Although the Veteran does have significant PTSD symptoms, such as depressed mood, anxiety, suspiciousness, sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships, the overall evidence does not demonstrate the symptoms contemplated for a 100 percent rating as to produce total occupational and social impairment. The Veteran has not demonstrated grossly inappropriate behavior during the applicable appeal period. Instead, the record indicates that he remains socially withdrawn, preferring to spend most of his time alone. Although with difficulty, the record repeatedly shows that he was still capable of performing activities of daily living and some socialization, such as occasional visits from his siblings and friends and occasional church attendance. See March 2018 VA Examination Report. During the entire appeals period, the Veteran denied any suicidal or homicidal ideation. At the March 2018 VA examination, the examiner found he had at most passive suicidal ideation without plan or intent and no intent to hurt others. Private medical records are also silent as to any suicidal ideation. The record also does not indicate that the Veteran has persistent hallucinations or delusions. Furthermore, the Veteran has not shown gross impairment in thought process or communication or disorientation to time or place. VA examiners found him to have organized, logical thought processes. VA medical providers consistently found the Veteran mentally oriented and able to communicate effectively. Such records also consistently reported that he could perform activities of daily living and had appropriate personal appearance and hygiene. The record is silent regarding any specific reports or findings of severe memory loss for names of close relatives, own occupation or own name. Thus, the Board does not find these symptoms to be of the severity warranting a 100 percent evaluation. In the most recent VA examinations of March 2018 and October 2018, the examiners found the Veteran had occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. The Board notes that the Veteran has claimed that a disability rating in excess of 70 percent may be warranted, but this is not indicated by the record above. Although there are occasional indications of some severe symptomatology, the overall disability picture is more consistent with a less than complete social and occupational impairment for a 100 percent disability rating. With respect to the Veteran’s occupational functioning and impairment, the Board observes that the VA examinations and VA medical records do not indicate total occupational and social impairment. The Board finds that these statements from the medical professionals are more probative as to the issue of occupational and social impairment due to PTSD symptoms than any lay testimony provided by the Veteran. Thus, although the Veteran may have some level of occupational impairment due to his PTSD symptoms, the Board finds that, based on the Veteran’s social history and lack of deficiencies in functioning, such symptoms would not encompass total occupational and social impairment as contemplated for a 100 percent rating. In this regard, the Board notes that the 70 percent rating assigned is recognition of serious occupational and social impairment with deficiencies in most areas. Overall, the record does not support finding symptoms that would support granting a disability rating in excess of 70 percent. Though the Veteran undoubtedly has had some severe PTSD symptoms, he has been generally able to function independently and has not demonstrated complete impairment due to PTSD. A disability rating in excess of 70 percent is denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel