Citation Nr: A25041002 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 211101-194442 DATE: May 6, 2025 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder with anxiety and depression (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1990 to June 1991. This matter is before the?Board of Veterans' Appeals?(Board) from a January 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is also the agency of original jurisdiction (AOJ). On the November 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected Evidence Review. Therefore, the Board may only consider the evidence of record at the time of the January 2021 rating decision and evidence submitted within 90 days of the November 01, 2021 submission date of the VA Form 10182. 38 C.F.R. §§ 20.301 and 20.303. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Entitlement to a rating in excess of 30 percent for PTSD is denied. The Veteran's service-connected PTSD?currently is rated?as 30?percent disabling under?38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, effective February 12, 2016. The Veteran seeks a higher rating for his?PTSD. By way of history, in September 2016, the Veteran was granted service connection for PTSD with a 30 percent rating effective February 12, 2016. In October 2016, the Veteran filed a VA Form 21-526b Supplemental Claim seeking review of denials of service-connection but did not seek review of the PTSD rating. In January 2017, the AOJ issued a rating decision addressing only the service connection issues on review. In January 2021, the AOJ conducted a special review of the Veteran's file and issued a decision that continued the 30 percent rating. In November 2021, the Veteran submitted a Notice of Disagreement, asserting that the AOJ should have afforded the Veteran a VA examination and seeking an increased rating for his PTSD. In a May 2022 Brief, the Veteran's representative argued that this appeal "involves disagreement with the originally assigned rating percentage." However, the Board finds the rating period on appeal begins January 28, 2020, one year prior to the AOJ's special review of the Veteran's file. 38 C.F.R. § 3.400?(o)(2). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155;?38 C.F.R. Part 4. Symptoms listed in VA's general rating formula for mental disorders are not an exhaustive checklist, but rather examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16?Vet. App.?436 (2002). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). The evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. §4.126 (b). A 30 percent rating is warranted 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 self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A?50?percent rating is warranted 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 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 for 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 The current rating of the Veteran's PTSD is based on the June 2016 VA examination. At that time, the Veteran reported symptoms including anxiety, depression, and disturbed sleep. He noted he did not like crowds or people in general, had no friends other than his wife and did not socialize. The examiner assessed these and other symptoms and diagnosed PTSD with anxiety and depression. The examiner found that the Veteran symptoms were consistent with causing occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See June 2016 VA examination. In reliance on the VA examination, the AOJ rated the Veteran's PTSD as 30 percent disabling. September 2016 rating decision. The Board has reviewed the record for the period on review, which to reiterate, begins January 28, 2020, for evidence of worsening of the Veteran's symptoms that may warrant a higher rating. The Board finds nothing in the record to support an increased rating. The Veteran's treatment records - VA and private - are silent for complaints or treatment of PTSD symptoms during the entire period on review. The Veteran has not undergone a VA examination since 2016, nor are there any other medical evaluations of record that may reflect current symptoms. Based on the dearth of evidence during the appeal period indicating a change in symptomatology, the Board finds that the evidence indicates the Veteran's symptoms continue to most closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, warranting a 30 percent, but no higher, rating. As the Veteran's symptoms do not meet the criteria for a 50 percent rating, it follows that his symptoms also do not meet the more stringent rating criteria supporting a 70 or 100 percent rating for the period on appeal. See 38 C.F.R. § 4.130, DC 9411. The Board acknowledges the Veteran's assertion that he should have been afforded a VA examination. November 2021 Notice of Disagreement. The Board also acknowledges the underlying sentiment that an examination from almost a decade ago may not reflect the Veteran's current symptoms. However, in this case, the Veteran had not affirmatively asserted worsening symptoms nor sought a higher rating by filing a claim. In addition, the Veteran's record is silent for worsening symptoms. Therefore, there was no?pre-decisional?duty?to?assist error by the AOJ in not ordering an examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board again points out that the Veteran may file a supplemental claim with supporting evidence of his worsening symptoms, and the AOJ will undertake a fresh review of that claim. In summary, the Board finds the competent evidence of record supports a 30 percent rating, but no higher, for the Veteran's PTSD during the period on appeal. As the Board finds the evidence is persuasively against the Veteran's claim of entitlement to a higher rating for his PTSD, the benefit-of-the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (2021). A. Dean Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jaeger, L 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.