Citation Nr: 21012580 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-18 618 DATE: March 4, 2021 ORDER An initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD did not manifest occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 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 Corp from September 1965 to August 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. This appeal is being adjudicated under the legacy appellate framework. In the substantive appeal perfecting this matter to the Board, the Veteran declined a personal hearing before the Board. The Board notes that in May 2018 the Veteran alleged that there was clear and unmistakable error (CUE) in the October 2016 rating decision. Specifically, the Veteran challenged the effective date for the assignment of service connection for PTSD. Nevertheless, the May 2018 CUE claim has not been adjudicated in the first instance, and it is not currently on appeal. Therefore, the Board shall not address this matter any further. An initial disability rating in excess of 50 percent for PTSD is denied. At issue is whether the Veteran is entitled to a disability rating in excess of 50 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 April 2010, and, in November 2010, the RO denied service connection. In March 2016, the Veteran filed to reopen the previously denied claim, and, in October 2016, the RO reopened the Veteran’s previously denied claim, granted service connection, and assigned an initial disability rating of 50 percent effective the date the claim to reopen was received. 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 mental disorders are assigned pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a disability rating of 50 percent is assigned when PTSD causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A disability rating of 70 percent evaluation is assigned when PTSD causes 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); or an inability to establish and maintain effective relationships. Id. A total disability rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. 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 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was also 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. The Veteran’s treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal. The Veteran underwent a VA examination in August 2016. The Veteran reported that he had a great relationship with his adult son, and that he has been dating his significant other for approximately a year and a half. The Veteran also indicated that he had a few friends. The Veteran stated that he worked part time as a seasonal tour guide for a tourist attraction. The examiner noted a number of psychiatric symptoms including depressed mood; anxiety; impaired judgement; disturbances of motivation or mood; and difficulty in establishing and maintaining effective work and social relationships. Notably, the examiner did not observe impaired thinking. The examiner opined that the Veteran manifested occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The weight of the evidence indicates that the Veteran is not entitled to a total disability rating. In order to meet the criteria for a total disability rating, the Veteran needed to manifested total occupational and social impairment. The Veteran testified that he had relationships with his significant other, his son, and a few friends. Additionally, the Veteran testified that he was employed. Additionally, a VA examiner did not opine that the Veteran manifested total occupational and social impairment. Therefore, the Veteran did not manifest total occupational and social impairment, and a total disability rating is precluded. The weight of the evidence indicates that the Veteran is not entitled to a disability rating of 70 percent. In order to meet the criteria for a disability rating of 70 percent, the Veteran needed to manifest occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that a VA examiner observed that the Veteran manifested impaired judgement; disturbances of motivation or mood; and difficulty in establishing and maintaining effective work and social relationships. As previously noted however, the Veteran testified that he had relationships with his significant other, his son, and a few friends, and that he was currently employed. Additionally, the examiner notably did not observe that the Veteran manifested impaired thinking. The record does not indicate that the Veteran participated in school during the period on appeal, but that is normal given the Veteran’s age cohort. Finally, a VA examiner did not opine that the Veteran manifested occupational and social impairment with deficiencies in most areas. Therefore, the weight of the evidence indicates overall the Veteran’s symptoms did not closely approximate the criteria for a disability rating of 70 percent enough in order to warrant the assignment of a disability rating of 70 percent. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran manifested total occupational and social impairment or occupational and social impairment with deficiencies in most areas. 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 of 70 percent for PTSD is denied. The Board has considered whether or not the issue of a total disability rating due to individual unemployability (TDIU) has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that it has not, because the Veteran has been employed, albeit part time, throughout the period on appeal. Additionally, the Veteran has not alleged that his previously service-connected disabilities have prevented him from securing and maintaining substantially gainful employment. 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.