Citation Nr: 21075468 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-16 888A DATE: December 20, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT The symptoms and overall impairment caused by the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but do not nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to May 1969. This case comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned a 50 percent rating, effective June 18, 2008. In May 2016 the Veteran filed a notice of disagreement (NOD) and in March 2017 the RO issued a statement of the case (SOC). In April 2017 the Veteran timely filed a substantive appeal (via VA Form 9). In November 2021 the Veteran's representative withdrew his request for a Board hearing. Therefore, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d). Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on 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 the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also 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). Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and 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 work-like 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. Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. The Board must then determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran contends that his disability rating should be higher and, for the following reasons, the Veteran's PTSD symptoms and impairment more nearly approximate the criteria for a 70 percent rating. A July 2008 VA treatment note indicates that the Veteran's PTSD symptoms include avoidance symptoms and being continually on guard. In a June 2008 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he suffers from nightmares, insomnia, depression, mood swings, isolation, and flashbacks. He stated that he has severe crying spells and becomes angry and irritable. In a July 2008 VA Form 21-4138 the Veteran stated that he suffers from nervous seizures and is in a wheelchair with limited mobility. A November 2011 VA treatment note indicates that the Veteran stated that he takes medication for his PTSD which minimizes his symptoms. A January 2012 private psychologist noted that the Veteran was easily confused, vague, listened poorly, and had problems with comprehension which was suggestive of a cognitive disorder. The private physician noted that the Veteran is a little alexithymic and has difficulty conceptualizing and expressing his emotions. An October 2015 VA psychologist noted that the Veteran's PTSD caused him occupational and social impairment with reduced reliability and productivity. The VA psychologist noted the Veteran experienced symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Overall, the Veteran has experienced symptoms such as impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. These symptoms caused occupational and social impairment with deficiencies in most areas, approximating the symptoms and impairment required for a 70 percent rating under the general rating formula. Although the Veteran has not exhibited all of the criteria for a 70 percent rating under 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. Therefore, an initial 70 percent rating is warranted for the entire appeal period. The Veteran's symptoms and overall impairment caused by his service-connected PTSD do not more nearly approximate total social and occupational impairment required for a 100 percent rating. The evidence of record does not demonstrate that the Veteran experienced symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself 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. During the January 2012 psychiatric evaluation, the Veteran described his marriage as "lovely." He also indicated that he lived with his 32 year old stepson. The Veteran indicated during the October 2015 VA examination that his marriage was good. He reported social impairment due to anhedonia and increased arousal, but indicated that he was capable of performing activities of daily living and did them routinely. The symptoms indicated by the examiner included difficulty in establishing and maintaining effective work and social relationships, but not an inability to do so. In addition, the Veteran indicated during the October 2015 VA examination that he stopped working due to his seizure disorder and did not indicate that his PTSD prevented him from working. Thus, the evidence of record reflects that the impairment caused by the Veteran's PTSD symptoms do not more nearly approximate the total social and occupational impairment required for a 100 percent rating under the general rating formula. For the above reasons, the preponderance of the evidence reflects that neither the symptoms nor impairment caused by the Veteran's PTSD more nearly approximated the total social impairment required for an initial 100 percent rating. The benefit of the doubt doctrine is therefore is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.