Citation Nr: 22016362 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 15-45 854 DATE: March 22, 2022 ORDER Service connection for a pancreatic disorder is denied. For the rating period on appeal from May 4, 2009, a higher initial disability rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to the herbicide Agent Orange. 2. The Veteran has a current disability of chronic pancreatitis with a tail lesion (pancreatic disorder). 3. The Veteran was not exposed to nuclear material or chemicals that were used to make napalm during service. 4. There was no in-service pancreatic injury, disease, or event. 5. The pancreatic disorder was not incurred in service and is not otherwise etiologically related to active service. 6. For the rating period on appeal from May 4, 2009, the severity, frequency, and duration of the symptomatology and functional impairment of the service-connected PTSD most nearly approximated occupational and social impairment with deficiencies in most areas, and did not more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a pancreatic disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from May 4, 2009, the criteria for a disability rating of 70 percent, but no higher, for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from January 1965 to July 1968. The appeal for service connection for a pancreatic disorder is on appeal from a July 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The appeal for an initial rating in excess of 30 percent for PTSD (from May 4, 2009) is on appeal from an April 2014 VA RO rating decision. The appealed issues were previously denied in a May 2019 Board of Veterans' Appeals (Board) decision. The Veteran appealed the Board denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Remand (JMR), the Court vacated the May 2019 Board decision and remanded for consideration of whether a VA examination was warranted for the denial of service connection for pancreatic disorder, and for consideration of additional evidence on the issue of a higher initial rating for PTSD. The March 2020 JMR stated that the Board did not provide an adequate explanation as to whether the Veteran had withdrawn his request for a Board hearing. In a January 2021 brief, the representative wrote that the Veteran was withdrawing the request for a Board hearing. Additionally, in an August 2021 statement, the Veteran wrote that he no longer wished to have a Board hearing, and was giving the representative the authority to withdraw the hearing request. Accordingly, the Board finds that the Board hearing request has been withdrawn. In a January 2021 brief, the representative argued that the issue of a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) should be addressed in this decision. The Board finds that it is premature to address the issue of a TDIU, as the development related to the Veteran's prior employment has not yet occurred. The RO is currently seeking additional information on prior employment and has sought to schedule an updated VA examination to gauge the severity of the PTSD. The examination for PTSD is not needed prior to the instant decision as there is no evidence of worsening in the record, and any future examination will pertain to ratings for a future period. Although the issue of TDIU has attached to the increased rating claim for PTSD pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), for effective date purposes, Rice does not permit bypassing VCAA notice and assistance, including development of evidence of the claim, or evidence in the Veteran's possession that is needed to substantiate a claim for TDIU. Rice decided the issue of the effective date for a granted TDIU claim, which is distinguishable from this case at this stage. Rice did not address the question of when it was appropriate for the Board to adjudicate a TDIU claim. Rice did not declare attachment to the rating issue for all conceivable purposes. For these reasons, while the Board is aware that a TDIU claim has been raised and, for effective date purposes, attaches to the PTSD rating issue, the TDIU issue is not ready for Board adjudication. Service Connection Legal Authority Direct Service Connection Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Service Connection Based on Herbicide Exposure In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) service in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) a current disability from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease manifested to a degree of 10 percent or more within the specified time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases will be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. Notwithstanding the foregoing presumption provisions for herbicide agent exposure, a claimant is not precluded from establishing service connection with a proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 115, 160-61 (1997). Secondary Service Connection Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show competent (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) competent nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Service Connection for a Pancreatic Disorder is Denied. The Veteran seeks service connection for a pancreatic disorder. The March 2020 JMR stated that the Board had failed to address whether VA was obligated to provide a medical examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the evidence does not demonstrate an in-service injury, disease, or event, as discussed further below, the requirements for a medical examination pursuant to McLendon have not been met. The evidence demonstrates that the Veteran currently has a pancreatic disorder. See July 2016 VA Treatment Record (following up on abnormal imaging that demonstrated abnormalities of the pancreas); February 2016 VA Treatment Record (stating that a pancreatic tail lesion appeared to represent a region of diffuse fatty pancreatic atrophy). The evidence demonstrates symptoms and a diagnosis starting in the 2010s. The present disability requirement has been met. After reviewing all the evidence, lay and medical, the weight of the evidence is against direct service connection as due to herbicide agent exposure, against a finding that the Veteran was exposed to radioactive material or chemicals used to make napalm, and against a finding of in-service onset of stomach symptoms that are etiologically related to the later-diagnosed pancreatic disorder. Regarding herbicide agent exposure, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides. A pancreatic disorder is not among those that are listed for service connection due to presumptive herbicide agent exposure, see 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive herbicide agent exposure basis must be denied. Regarding direct service connection as due to herbicide agents, the scientific studies reviewed as part of the regulatory process have not indicated that there was evidence of a possible relationship between herbicide agent exposure and a pancreatic disorder developed many years later, so there is not a nexus between the herbicide exposure and the later-diagnosed pancreatic disorder. The Veteran asserts that he was exposed to radioactive material and chemicals while making nuclear weapons and napalm during service, and asserts that this is an in-service event that should trigger the duty under McLendon to seek a VA examination. See July 2016 Notice of Disagreement. A review of the lay and medical evidence shows that the weight of the evidence is against a finding that the alleged in-service events happened or that the service duties were actual in-service "events" of some potential harm to the Veteran. The Veteran does not explain why as an electronics operator he would have been tasked with making napalm and handling nuclear weapons. Such a task is outside the normal duties associated with his Military Occupational Specialty (MOS). The service personnel records do not provide any suggestion that he would have been tasked with such an extraordinary duty. The Veteran also does not assert which chemicals he was exposed to and the lack of detail supports the conclusion that the exposure to nuclear weapons and napalm did not in fact occur. Cf. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (upholding the Board's finding that service personnel records are required to prove in-service mustard gas exposure, and that lay assertions of exposure to gases or chemicals during service are not sufficient to establish such an event). Accordingly, the weight of the evidence is against a finding of an in-service exposure-related event (other that herbicide agents); therefore, the unsubstantiated assertion of exposure to nuclear weapons and napalm does not trigger the duty under McLendon to seek a VA examination. Any nexus opinion based on the assumption of the occurrence of such unsubstantiated in-service exposures would be based on inaccurate factual assumptions, so would be of not probative value. The Veteran also asserts that he has had stomach issues while in Vietnam and since then has had irregular bowels. Based on the inaccurate factual assumption that these actually happened, the subsequent contention is that this history of symptoms supports the need for a VA examination under McLendon. A review of the lay and medical evidence shows that the weight of the evidence is against a finding of in-service onset of gastrointestinal or endocrine symptoms. The July 1968 Report of Medical Examination at service separation found that all bodily systems, including the abdomen and viscera and the endocrine system, were normal. The Veteran signed a statement acknowledging the examination had happened. Such a finding argues against the conclusion that the Veteran was experiencing stomach or bowel issues at service separation. The Veteran has not offered sufficient explanation as to why his own affirmation of medical history at service separation was not accurate, and has not called into question the physical examination findings and conclusions by the medical examiner at service separation. While there may be plausible explanations, the Veteran has not offered any in this case. Any implicit assumptions that such history and findings are inaccurate, including by this Vietnam veteran, in this case would be pure speculation, and not evidence. See 38 C.F.R. § 3.102 (stating that VA adjudications do not deal in "speculation or remote possibility"). Additionally, the service treatment (medical) records documented complaints of and treatment for a sore throat, body aches, a left knee abrasion, a muscle pull of the left eye, a painful testicle, an injured hand, acne, and shoulder pain. The service treatment records are complete, and stomach or bowel complaints or issues would be documented in the service treatment records had such symptoms also occurred. Accordingly, their absence is additional support for the conclusion that there was no in-service onset of stomach or bowel symptoms, especially in the context of the Veteran's own contemporaneous and affirmative denial of such symptoms at service separation, and physical examination that also contemporaneously and consistent with the reported history found no stomach or bowel problems during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). The post-service medical records demonstrate that a pancreatic disorder was first diagnosed in the 2010s. See February 2016 VA Treatment Record; May 2015 VA Treatment Record (explaining that clinical examination demonstrated the pancreas was atrophied but the Veteran clinically appeared to behave like he had adequate pancreatic function, as demonstrated by no diarrhea complaints and no oiliness to his bowel movements). A February 2015 VA Treatment Record stated that the Veteran had mild gastrointestinal symptoms for a number of years that had worsened recently. Although the Veteran asserted in May 2015 that his May 2009 claim for service connection for a prostate disorder should have been asserted as a claim for service connection for a pancreatic disorder, the weight of the evidence shows no pancreatic symptoms in the May 2009 claim, as further indicated by the Veteran pointing to urinary frequency. Given that the symptoms were diagnosed as a pancreatic disorder over 40 years after service separation, even if the symptoms had been chronic for a few years prior to the diagnosis in the 2010s, the post-service treatment records weigh against the Veteran's assertion of an onset of symptoms in Vietnam and continuing since then, as does the absence of any lay assertions during those years, any medical history given during treatment, or any evidence of treatment for decades after service even suggestive of pancreatic symptoms. Given that the weight of the evidence is against a nexus between the current pancreatitis and the presumed herbicide exposure during service, and the weight of the evidence show the alleged in-service chemical (including napalm) exposure, radioactive material exposure, and stomach or bowel-related symptoms did not in fact happen, the claim must be denied, and a VA examination is not required under McLendon. Accordingly, direct service connection must be denied. In a January 2021 brief, the representative argued that service connection is also due on a secondary basis because of alcohol abuse caused by the service-connected PTSD. For secondary service connection to be granted, there must be a service-connected primary disability. See 38 C.F.R. § 3.310. The recent diagnosis in the December 2020 Private Opinion on PTSD purports to relate pancreatitis to alcohol abuse; however, alcohol abuse is a non-service-related disorder for which secondary service connection has not been claimed or established. For this reason, this assertion in the private opinion does not raise a secondary service connection claim under 38 C.F.R. § 3.310. The assertion is of a tertiary allegation of service connection (that PTSD caused alcohol abuse which caused a pancreatic disorder), which is a premature assertion that, absent a claim for secondary service connection for alcohol abuse, does not raise any type of service connection theory, including a secondary service connection theory. This issue on appeal is service connection for pancreatitis, which does not involve a PTSD rating issue (so does not invoke a differentiation question between PTSD and alcohol abuse) and does not raise a secondary service connection issue as part of the service connection for pancreatitis issue. Perhaps in the context of a PTSD rating issue, where a question of differentiation of symptoms is raised, such service connection for alcohol disorder could be raised, but it is not raised here. The proper course of action would be to file a claim for secondary service connection for alcohol abuse, which is permitted as a secondary diagnosis. The representative surely knows how to file such a claim, including on the specific VA forms that make such a claim explicit, rather than submitting evidence and arguing a secondary service connection claim has been raised. If alcohol abuse is found as due to the service-connected PTSD and there is a demonstration that the alcohol abuse caused the pancreatic disorder, an actual secondary service connection theory of entitlement then could be pursued. Until then, the attempted tertiary service connection assertion does not in fact raise a new theory of service connection. Disability Ratings Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's 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. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. See Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). 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." See 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." See id. Under Diagnostic Code 9411, a 30 percent rating will be assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating will be assigned for 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- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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 ideations, 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 the veteran's personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent schedular rating contemplates 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. 2. An Initial Rating of 70 Percent for PTSD is Granted. The Veteran is in receipt of a 30 percent initial disability rating for PTSD and appeals for a higher disability rating. A review of all the lay and medical evidence of record demonstrates that the degrees of social and occupational impairment shown by the evidence more nearly approximate the criteria for a higher initial disability rating of 70 percent for the entire initial rating period from May 4, 2009. The Veteran sought mental health treatment in December 2008, explaining that as he was facing retirement the increased time led to increased symptoms that had become difficult to manage. See December 2008 VA Treatment Record. The provisional diagnosis was PTSD. The Veteran endorsed a range of PTSD symptoms, to include daily intrusive thoughts and memories (like or similar to disturbances of motivation and mood), occasional flashbacks triggered by certain smells (like or similar to disturbances of motivation and mood), emotional numbing (like or similar to impaired mood), detachment (like or similar to disturbances of motivation and mood), avoidance of cues (like or similar to anxiety), sleep disturbance, concentration problems (like or similar to impaired thinking), anxiety, an exaggerated startle response (like or similar to disturbances of motivation and mood), and hypervigilance (like or similar to anxiety). The Veteran sought additional mental health treatment in January 2009 and April 2010 with similar symptoms and occupational and social impairment. In a June 2010 VA Examination, the Veteran reported sleep difficulty, difficulty being in groups (like or similar to difficulty in establishing and maintaining effective work and social relationships), hypervigilance, difficulty trusting others and forming close relationships, social isolation (like or similar to inability to establish and maintain effective relationships), problems with concentration (like or similar to impaired thinking), low stress tolerance, jumpiness (like or similar to anxiety), irritability (like or similar to impaired mood), and intrusive memories. The Veteran reported a good relationship with his siblings and wife but no relationships with non-family members, which was due to trouble forming close trusting relationships and being easily irritated. In the June 2010 VA Examination, the Veteran was oriented, with appropriate behavior and normal affect, mood, communication, judgment, and speech; however, there was impaired attention and focus. At a February 2014 VA examination, the Veteran reported that he continued to socialize only with family because of an inability to trust others. He had no social organizations or relationships. The Veteran had reported a successful work life. The Veteran endorsed a severe range of anxiety and the symptoms necessary to support a PTSD diagnosis, and continued to endorse difficulty in establishing and maintaining effective work and social relationships. In a December 2015 statement, the Veteran reported that he has impairment in thinking and communication, cannot or does not complete thoughts or sentences, talks of non-relevant events and has random thoughts, cannot maintain or complete tasks, jobs, or processes, interrupts self or others in panic mode regarding other thoughts, tasks, and jobs, has often irrational speech, has grossly inappropriate behavior with an explosive and irritable mood, has panic attacks, is stressed and depressed, is unable to deal with family members or others and locks himself in a room to avoid contact, has relationships that are strained, impaired, or non-existent, and has an intermittent inability to perform activities of daily living, including personal hygiene. The Veteran sought mental health treatment in June 2019 and reported anxiety, depression, sleep problems, nightmares, intrusive memories, and avoidance behaviors. He reported that he would avoid crowded places and leave situations where he felt overwhelmed by too many people (like or similar to inability to establish and maintain effective work and social relationships). He stated that some of his family members found his personality disagreeable and that he had passing thoughts of suicide without plan or intention. In an April 2019 statement, the Veteran underlined symptoms of occupational and social impairment that he found applied to him, which fell largely at the level of occupational and social impairment with difficulties in most areas. He wrote that he had difficulties with thinking, judgment, and mood, as well as an inability to maintain effective relationships and neglect of personal appearance and hygiene. In a December 2020 private evaluation, the psychologist wrote that the Veteran reported that psychiatric symptoms interfere with activities of daily living in terms of maintaining personal hygiene and that he felt confined to his house as a result of psychiatric symptoms. The Veteran was cooperative, with normal speech, mildly anxious mood, logical and linear thought processes, and adequate attention, concentration, memory, insight, and judgment. In the December 2020 private evaluation, the psychologist interviewed the Veteran and represented review of the prior mental health records and examinations. The Veteran reported a range of psychological symptoms that were largely consistent with past treatment, to include hypervigilance, nightmares, physiological reactivity, avoidance and social withdrawal, irritability, low mood, chronic sleep impairments, and ongoing negative beliefs and emotions. The Veteran also reported a few psychiatric symptoms that had not been previously observed, such as hallucinations, dissociation, and a history of homicidal ideation (like or similar to suicidal ideation). There was a noticeable impact on relationships, as he had to control too much in the relationship or had to be alone and not around people. Regarding occupational functioning, he was easily frustrated and could not keep his business running. He would be irritable with customers, which he reported led to him closing his business in 2009. In the December 2020 private evaluation, the psychologist correlated the severity, frequency, and duration of the psychiatric symptomatology and functional impairment to the prior treatment and mental health records. The psychologist assessed that, throughout the rating period on appeal, the Veteran experienced occupational and social impairment with deficiencies in most areas criteria that tracks the 70 percent rating criteria, of which the examiner was obviously aware and describing. Resolving reasonable doubt in the Veteran's favor, the Board finds that the overall disability picture more nearly approximates the criteria for a 70 percent disability rating. While the record shows the Veteran consistently reporting symptoms and social and occupational impairment that does not approximate the requirements for a 70 percent rating, the most recent evaluation by the private examiner who was writing to support the Veteran's claim by providing an assessment that tracked the 70 percent schedular rating criteria, there is some evidentiary basis for finding that the symptomatology and functional impairment of the service-connected PTSD most nearly approximated a 70 percent level of impairment (occupational and social impairment with deficiencies in most areas). The same evidence that only approximated a 70 percent rating, and shows many symptoms and degrees of social and occupational impairment that do not fully meet the 70 percent rating criteria, also weighs against findings of total occupational and social impairment for a yet higher 100 percent rating. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.