Citation Nr: 21011455 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-19 162 DATE: March 1, 2021 ORDER A disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED A total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran did not manifest total occupational and social impairment during the period on appeal. CONCLUSION OF LAW The criteria for a disability rating of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from August 1967 to January 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in June 2019, and a transcript of the hearing is of record. This matter was previously before the Board, and, in October 2019 and July 2020, the Board remanded this matter for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. A disability rating in excess of 70 percent for PTSD is denied. At issue is whether the Veteran is entitled to a disability rating in excess of 70 percent for PTSD. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection in May 2010, and the RO granted service connection in November 2011 and assigned a disability rating of 30 percent from May 20, 2011 (the date the claim was originally received) to August 16, 2011; a total disability rating from August 17, 2011 to September 30, 2011; and a disability rating of 30 percent thereafter. The Veteran filed an increased disability rating in May 2015, and, in August 2015, the RO denied an increased disability rating. The Veteran appealed. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for PTSD are assigned pursuant to the General Rating Formula for Mental Disorders. A disability rating of 70 percent is assigned when an acquired psychiatric disorder when an acquired psychiatric disorder manifests in 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A total disability rating is assigned when an acquired psychiatric disorder manifests in 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 to assign, the Board’s primary consideration is the 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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. The Veteran’s treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal. The Veteran underwent a VA examination in June 2015. The Veteran reported that he had been married since 1988, but that he had an extremely strained relationship with his wife. The Veteran claimed that he did not have many friends. The Veteran reported that he worked for the Post Office, and that he retired after 34 years. The Veteran reported that he worked part time as a ranch hand until about years prior to the examination (approximately 2013), and that, until approximately three to four months prior to the examination (February or March 2015), the Veteran was drive a mail delivery truck part time. The examiner observed a number of psychiatric symptoms including depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; and an inability to establish and maintain effective relationship. The examiner opined that the Veteran manifested occupational and social impairment with decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran testified at a personal hearing before the Board in June 2019. The Veteran reported that he had a strained relationship with this wife. The Veteran also indicated that he had only two friends, and that he did not spend a great deal of time with them. The Veteran claimed that since retirement had had worked a few odd jobs, but that he was otherwise unemployed. See Transcript. The Veteran underwent another VA examination in January 2020. The Veteran reported that there were little or no changes in his social, marital, and family history since the last VA examination, but the Veteran indicated that, since his last VA examination, he had not been looking for work; but he does do some home maintenance from time to time. The examiner observed a number of psychiatric symptoms including: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control. The examiner opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in September 2020. The examiner opined that the Veteran manifested occupational and social impairment with deficiencies in most areas since 2010. The Veteran reported that he was still married, and that his relationship with his wife was pretty good. The Veteran claimed that he worked a couple of odd jobs since retirement, but that he was otherwise unemployed. The examiner observed a number psychiatric symptoms including depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; flattened affect; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; suicidal ideation; and neglect of personal appearance and hygiene. The weight of the evidence indicates that the Veteran is not entitled to a total disability rating for PTSD. In order to meet the criteria for PTSD, the Veteran needed to manifest total occupational and social impairment. The evidence of record demonstrates that the Veteran has been able to maintain relationships with his wife and a few friends throughout the period on appeal, and that the Veteran was able to perform odd jobs off and on throughout the period on appeal. The Veteran’s ability to maintain some social relationships and perform some work indicates that the Veteran – although undoubtedly manifesting occupational and social impairment – was not totally occupationally and socially impaired. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran manifested total occupational and social impairment. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 70 percent for PTSD is denied. REASONS FOR REMAND TDIU is remanded. A claim for TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter must be remanded for a new VA examination in order to ensure that the evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a medical opinion based on the evidence of record) in order to address the following: (a.) Comment on the Veteran’s ability to function in an occupational environment. (b.) Document any reported education or work experience.   (c.) Describe functional impairment caused solely by the Veteran’s service-connected disabilities. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.