Citation Nr: 18156994
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 16-32 596
DATE:	December 11, 2018
ORDER
For the entire initial rating period from December 31, 2013, a higher disability rating for posttraumatic stress disorder (PTSD) in excess of 70 percent is denied.
FINDING OF FACT
For the entire rating period, the Veteran's PTSD has not been manifested by total occupational and social impairment.
CONCLUSION OF LAW
The criteria for a higher initial disability rating in excess of 70 percent for PTSD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130; Diagnostic Code (DC) 9411.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served honorably in the United States Army from January 2006 to December 2013. This appeal arises from a February 2014 rating decision, which granted service connection for PTSD and assigned a 70 percent initial rating.
Duties to Notify and Assist
Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. §§ 5103, 5103A.
Higher Initial Rating Legal Criteria
Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 
PTSD is rated under 38 C.F.R. § 4.130 and DC 9411. A 70 percent rating will be assigned 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); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130; DC 9411. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).
A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130; DC 9411.
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, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” 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.” Id. 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.” Id. 
In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating when the appeal was certified after August 4, 2014. As the instant appeal was certified after August 4, 2014, the Board will not rely on GAF scores for rating purposes.
Higher Initial Rating for PTSD Analysis
The Veteran’s PTSD has been rated at 70 percent under the criteria set forth in 38 C.F.R. § 4.130, DC 9411. The Veteran contends his PTSD should be rated at 100 percent under the same criteria. 
After a review of all the evidence, lay and medical, for the initial rating period on appeal from December 31, 2013, the Board finds that the severity, frequency, and duration of the symptoms of the service-connected PTSD have not more nearly approximated total occupational and social impairment as required for a higher 100 percent rating under DC 9411. See 38 C.F.R. § 4.130. 
The evidence shows no gross impairment in thought processes or communication. See September 2017 VA PTSD Questionnaire. He has shown himself to be “pleasant and cooperative” with nursing staff. See May 2014 VA Nursing Note. Though processes are organized in a “linear and goal-directed” manner. See July 2016 Mental Health Note. There were no persistent delusions, hallucinations, or grossly inappropriate behavior. See September 2017 VA PTSD Questionnaire. A nurse described the Veteran’s behavior as “normal” and noted that he does not feel hopeless about the future. See January 2016 VA Nursing Note. 
The evidence has not shown disorientation to time or place or memory loss for names of close relatives, own occupation, or own name.  See September 2017 VA PTSD Questionnaire. Although concentration levels are bad at times, the Veteran is capable of managing financial affairs and personal care functions for everyday living. See January 2017 Caregiver Support Note; March 2013 C&P Exam. There are good family relationships and the Veteran is cooperative with medical staff. See July 2016 Psychiatry Note; March 2014 Suicide Risk Assessment. He has also shown a desire to help take care of his daughter. See January 2014 Discharge Note. Although the evidence suggests a danger of hurting himself (i.e., two suicide attempts), he does not experience homicidal thoughts. See September 2017 VA PTSD Questionnaire; March 2013 C&P Exam. Thus, it is reasonable to infer that any symptoms of impairment of thought processes are not gross, and any danger of hurting self or others is not persistent. 
The Veteran’s PTSD symptoms are not of the frequency, severity, and duration to cause total occupational and social impairment. The evidence has consistently shown that, despite some social withdrawal, he lives harmoniously with his mother, is able to visit friends in Germany, and enjoys playing cards with peers. See September 2017 VA PTSD Questionnaire; July 2016 VA Psychiatry Note; May 2014 VA Nursing Note. PTSD symptoms are somewhat alleviated when he casually converses with nurses and other patients. See January 2014 Discharge Note. Although granted a TDIU in a June 2017 rating decision, he has previously stated his PTSD symptoms do not preclude him from functioning at work. See 2013 Private Medical Note. He has acceptable hygiene and excellent nutrition levels. See May 2014 Mental Health Note. More importantly, the VA psychologist opined the Veteran does not display total occupational and social impairment. See September 2017 VA PTSD Questionnaire. 
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As a whole, the evidence does not show total occupational and social impairment due to PTSD. Because the 100 percent rating specifically contemplates total occupational and social impairment due to PTSD symptomatology, the evidence weighs against finding that the schedular criteria for a 100 percent rating are met. 38 C.F.R. §§ 4.3, 4.7. Consequently, a higher disability rating for PTSD in excess of 70 percent is denied for the entire initial rating period from December 31, 2013.
 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Dye, Associate Counsel