Citation Nr: 1647016 Decision Date: 12/15/16 Archive Date: 12/30/16 DOCKET NO. 10-05 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for depressive disorder, NOS. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse. REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board previously considered this appeal, granted the 70 percent rating back to the date of claim, and denied a 100 percent rating for PTSD with alcohol abuse in April 2015. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). The Court issued a March 2016 memorandum decision remanding the appeal to the Board. The issues the Board remanded in the April 2015 decision are continuing to be developed by the Agency of Original Jurisdiction (AOJ) and have not been returned to the Board for adjudication. FINDINGS OF FACT 1. The evidence is unclear whether the diagnosis of depressive disorder is on-going; nevertheless, all of the Veteran's depressive symptoms are considered by the evaluation for PTSD with alcohol abuse. 2. The evidence shows the Veteran's PTSD with alcohol abuse symptoms caused deficiencies in most areas but not total disability. CONCLUSIONS OF LAW 1. The claim of service connection for depressive disorder is dismissed as moot. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 4.14, 20.101 (2015). 2. The criteria for an initial rating of 70 percent, but not higher, for PTSD with alcohol abuse have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In January 2008 and November 2008, prior to adjudication of his claims, the RO sent the Veteran letters providing notice that satisfied the requirements of the VCAA. These letters explained how ratings and effective dates would be assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, available medical records have been obtained and considered, including private records. VA provided examinations for the Veteran's mental health in July 2009, May 2012, and December 2015. The Veteran waived review of the December 2015 examination by the AOJ in August 2016 correspondence. There is no indication or assertion that these examinations were inadequate. To the contrary, they provided thorough rationale for conclusions, detail on diagnoses and symptoms, and addressed the appropriate rating criteria. In the memorandum decision, the Court suggested that a new examination might be needed to assess the Veteran's alcohol abuse. The Board finds that the examinations of record adequately address the effects of alcohol abuse, because the December 2015 examiner explained that excessive use of alcohol confounds the interpretation of the Veteran's mental health symptoms, there are no separate symptoms, and the effects are intertwined. The Board has carefully reviewed the record and determines there is no additional development needed for adjudication. As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the claimant's favor. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. at 126-127. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Under the General Rating Formula, the criteria for a 50 percent rating are: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; 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.38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for 70 percent rating are: 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; obsessive 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. Id. The criteria for 100 percent rating are: 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In the March 2016 memorandum decision, the Court directed the Board "to clarify for what conditions the Veteran is service-connected and to adjudicate the issue of service connection for depressive disorder and alcohol abuse if it has not already done so." The December 2015 examiner diagnosed PTSD and alcohol use disorder related to PTSD. Based on this and other examiners' interpretations, the Board finds that alcohol abuse is a symptom secondary and part of the Veteran's PTSD. As such, the Board and the RO, in the September 2016 rating decision, have reclassified the Veteran's service-connected disability as PTSD with alcohol abuse. The below analysis considers all symptoms of PTSD and alcohol abuse. With respect to depressive disorder, the evidence shows diagnoses of depressive disorder, NOS in July 2009 and May 2012 examinations but not the December 2015 examination. The July 2009 examiner opined that depressive disorder was related to the Veteran's military service. All mental health disabilities have the same general rating criteria regardless of diagnosis. See 38 C.F.R. § 4.130. Moreover, the Court in Mittleider found that unless symptoms can be conclusively separated, all signs or symptoms should be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Here, the Court acknowledged that the Board considered depressive symptoms in the appropriate evaluation for PTSD. See Memorandum Decision March 2016. The Veteran cannot be prejudiced, because the disability rating for PTSD with alcohol abuse considers all of his mental health symptoms and disabling effects, including depression. Indeed, the Board could not grant the Veteran a separate rating for depressive disorder because the symptoms would overlap with his PTSD rating and constitute impermissible pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. The Board further notes that on remand, the RO granted 100 percent disability compensation based on individual unemployability (TDIU) back to the date of his claim for PTSD. Adjudication of the issues on appeal could not lead to additional compensation for the Veteran, including special monthly compensation, because he is already receiving 100 percent disability based largely on the effects of his service-connected PTSD with alcohol abuse. Any grant of service-connection for depressive disorder, if warranted, could not result in additional benefits for the Veteran. Thus, his claim for service connection for depressive disorder is moot. In its prior decision, the Board granted a 70 percent disability rating for the entire period on appeal. The Board will not disturb that rating, and the Board finds that the Veteran's disability picture for PTSD with alcohol abuse continues to fail to meet the criteria for a 100 percent rating. See 38 C.F.R. § 4.130, DC 9411. The evidence shows that the Veteran's PTSD with alcohol abuse symptoms does not cause total occupational and social impairment. VA treatment from August 2008 recorded depressed mood, daily nightmares, flashbacks, avoidance, hypervigilance, easy startle response, sleep problems, decreased energy, poor concentration, anxiety that interferes with life, feelings of worthlessness, stuttering and slowed speech, and isolation. August and September 2008 treatment records show similar symptoms and additional symptoms of avoidance of crowds, poor eye contact, and taking jobs with lower responsibilities and less exposure to others. The August and September 2008 examiners assigned a Global Assessment of Functioning (GAF) score of 50 indicating serious symptoms or serious impairment. See DSM-IV. Similarly, a November 2008 provider characterized the symptoms of PTSD with alcohol abuse as severe. During a July 2009 VA examination, the Veteran reported being emotionally distant, not feeling close to anyone, exaggerated startle response, irritability, avoidance, not liking crowds, hypervigilance, sleep difficulty, violent nightmares, decreased motivation and energy, loss of interest in activities, diminished concentration and short-term memory, and intrusive thoughts. He said he would not go to movies because he did not like an enclosed place and sat with his back to the door in public. The Veteran retired prior to the examinations, but the July 2009 examiner determined that the Veteran's PTSD with alcohol abuse symptoms would cause moderate to severe impact on the work environment. The May 2012 VA examiner recorded recurrent and distressing recollections and dreams; physiological reactivity to cues; avoidance of thoughts, feelings, people, and place that arouse recollection of trauma; sleep difficulty; irritability/anger outbursts; hypervigilance; exaggerated startle response; depressed mood; anxiety; mild memory loss; circumstantial, circumlocutory, stereotyped speech; disturbances in motivation and mood; decreased energy; feeling hopeless; difficulty in adapting to stressful circumstances; concentration problems; and suicidal ideation. The examiner noted that alcohol abuse caused excessive alcohol consumption, past legal problems, and interpersonal problems. August 2008 treatment and the two VA examinations note suicidal ideations with past suicidal attempts but no current plans. The July 2009 and May 2012 VA examiners also assigned GAF scores of 50. The December 2015 VA examiner diagnosed PTSD and alcohol use disorder secondary to PTSD. The Veteran reported that he remains married to his wife of 45 years and described the marriage as "we get along." He had a good relationship with one child and a strained relationship with the other because of a custody battle over his grandchild. See VA examination. The Veteran reported being active in church and Bible study and participating in social activities revolving mostly around church and family. The examiner found that he completed activities of daily living. The examiner noted that the Veteran had not worked since 2008 but agreed with a prior opinion that his array of symptoms would produce a serious impact on his ability to sustain adequate work performance in any competitive work setting. The Veteran endorsed anger but no violence since the last VA examination, denied suicidal ideation or intent or plan to harm, and reported binge drinking. The December 2015 examiner recorded recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; intense or prolonged psychological distress at exposure to cues; marked physiological reactions to internal or external cues; avoidance of distressing memories/thoughts and people/places associated with trauma; inability to remember important aspects of the trauma; and persistent, distorted cognitions about the trauma. He also noted persistent negative emotional state; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; mild memory loss; disturbances in motivation and mood; difficulty adapting to stressful circumstances; tearful expression; pressured speech; and spatial disorientation. The examiner found his hygiene and grooming good. The examiner assessed the Veteran as cooperative and capable of managing finances. Based on the evidence, the Veteran's symptoms interfere with his ability to go to certain places, interact with people, concentrate, and participate in some activities. They cause deficiencies in mood, work While a 70 percent evaluation is warranted throughout the rating period on appeal, the evidence does not show symptoms of the same severity, frequency, or duration as those contemplated by the 100 percent rating. See 38 C.F.R. § 4.130, DC 9411. There is no evidence of gross impairment in thought, memory, or inappropriate behavior. Instead, August and September 2008 treatment records and July 2009 examination show the Veteran was oriented with linear and logical thoughts, no hallucinations, and adequate judgment and insight. The July 2009 and December 2015 examiners found the Veteran able to complete all activities of daily living. Suicidal ideations were considered in the award of 70 percent disability, but the evidence does not show that he is a danger to himself or others. He consistently denied any suicidal plan or homicidal ideations. September 2008 treatment and the December 2015 examination show the Veteran had an appropriate appearance with good grooming and hygiene. Further, the Veteran consistently reported good relationships with his siblings, his wife, and his son. See August 2008 treatment, July 2009 and May 2012 examinations. He reported that his relationship with his daughter was strained and could be better. See id. In the December 2015 examination, he reported that the strain on the relationship was due to his pursuit for custody of his grandchild. His involvement in a legal proceeding seeking guardianship of a minor shows that he is capable of caring not only for himself but for others as well. In August 2008 treatment, the May 2012 VA examination, and December 2015 examination, the Veteran reported going to church, being active, and volunteering. In August 2008, he noted that he enjoyed fishing and nature. In the July 2009 examination, the Veteran reported walking as a leisurely activity. The alcohol-related legal problems noted by the May 2012 examiner, including DUI, last occurred in 1994, significantly prior to the claims period. Hence, they are not probative to this evaluation. Spacial disorientation, speech problems, suicidal ideations, and near-continuous depression are specifically enumerated in the 70 percent criteria and do no indicate the severity of symptoms of 100 percent disability. There is no evidence of gross impartment of thought or communication. The Veteran interacted with all examiners satisfactorily, and the May 2012 and December 2015 examiners found him capable of managing his own finances. The Veteran completes activities of daily living and continues to be involved in church and activities with family. As the Veteran is able to care for himself and his affairs, complete daily tasks, maintain good family relationships, and participate in church, his PTSD with alcohol abuse symptoms do not cause total disability either socially or occupationally and a 100 percent rating is not warranted. See 38 C.F.R. § 4.130, DC 9411. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the laws associated with rating mental health disabilities are intentionally broad to consider the overall effect of symptoms on a Veteran's life. Thus, the rating code is sufficient to rate the Veteran's disability picture. Following Mittleider, there are no symptoms that have not been rated in connection with a service-connected disability. Mittleider, 11 Vet. App. at 181. As such, there is no combined effect, which is exceptional and not captured by the schedular evaluations. See Johnson v. McDonald, 2013-7104, 2014 WL 3844196 (Fed. Cir. 2014). Accordingly, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. ORDER The claim for service connection for depressive disorder is moot and is dismissed. A rating in excess of 70 percent for PTSD with alcohol abuse is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs