Citation Nr: 1751985 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-28 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased initial disability rating for posttraumatic stress disorder (PTSD) with alcohol abuse and dementia, rated as 30-percent disabling prior to December 11, 2009, 50-percent disabling from December 11, 2009 to May 27, 2015, and 70-percent disabling thereafter. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected PTSD with alcohol abuse and dementia. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from July 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and April 2013 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Notably, in the July 2008 rating decision, the RO granted service connection for PTSD, assigning a 30-percent disability rating effective May 25, 2005. The Veteran subsequently submitted new and material evidence within one year of that decision. In accordance with 38 C.F.R. § 3.156(b), in a June 2009 rating decision, the RO reconsidered the initial rating assigned and determined that it should be continued. The Veteran filed a timely Notice of Disagreement in August 2009. Thus, the matter is appropriately considered an initial rating claim stemming from the Veteran's original claim of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). The issue of whether an overpayment of compensation benefits in the amount of $270.00 is validly created is addressed in a separate decision. The issues of entitlement to service connection for ED, entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to September 8, 2009, the Veteran's PTSD with alcohol abuse and dementia was productive of occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From September 8, 2009, the Veteran's PTSD with alcohol abuse and dementia has been productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood; total occupational and social impairment due to PTSD with alcohol abuse and dementia has not been shown. CONCLUSIONS OF LAW 1. Prior to September 8, 2009, the criteria for an initial disability rating in excess of 30 percent for PTSD with alcohol abuse and dementia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 2. From September 8, 2009, the criteria for a 70-percent rating, but no higher, for PTSD with alcohol abuse and dementia have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Laws and Regulations Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD with alcohol abuse and dementia is currently rated under DC 9411. See 38 C.F.R. § 4.130. He is in receipt of a 30-percent rating prior to December 11, 2009; a 50-percent rating from December 11, 2009 to May 27, 2015; and a 70-percent rating thereafter. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (General Rating Formula). 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 behavior, 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). 38 C.F.R. § 4.130, DC 9411. 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70-percent evaluation 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. Finally, a total schedular rating of 100 percent is warranted when the disorder results 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), 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." The Federal Circuit 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." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). Analysis The Veteran contends that his service-connected PTSD with alcohol abuse and dementia is more severe than his current staged disability rating suggests. For the reasons discussed below, the Board finds that a rating in excess of 30 percent is not warranted prior to September 8, 2009. Thereafter, the Veteran's symptomatology most nearly approximates impairment warranting a 70-percent rating. Prior to September 8, 2009 The Veteran filed the instant claim for service connection in May 2005. An August 2005 VA Mental Health clinic note reflects that he had a history of nightmares, startle response, and flashbacks from experiences in Vietnam. The Veteran reported drinking a half-gallon of whiskey per week. He reported that he had trouble sleeping. In September 2005, during a VA psychiatric evaluation, the Veteran reported that his distress had gradually subsided over the years. However, he reported a great deal of anger and stated he was socially isolated and had marital problems. No suicidal or homicidal ideation was noted. He appeared coherent and focused during the interview. No impairment in consciousness was noted. There was no evidence of psychosis or significant risk of imminent harm to self or others. In June 2008, the Veteran underwent a VA PTSD examination. He reported drinking alcohol every day, and stated that he had been married three times. He reported significant marital strife. He reported that he had some friends and maintained relationships with his children. He denied any work difficulties in terms of disciplinary actions, getting along with co-workers, or missed time. He denied any current mental health treatment. The Veteran reported having dreams about Vietnam once a month. He reported having intrusive thoughts, avoidance behavior, and feelings of detachment from people. He reported sleep disturbance, hypervigilance, and irritability. He endorsed feeling depressed, which he blamed on his wife. On examination, the Veteran was appropriate and spoke clearly and understandably. He was oriented to person, place, time, and purpose, and his thoughts were logical with no indication of hallucinations, delusions, or preoccupations. Attention, concentration, and memory were intact. In sum, a diagnosis of PTSD, mild to moderate, with depressive disorder and alcohol dependence was noted. A Global Assessment of Functioning (GAF) score of 62 was assigned. The examiner noted that the Veteran was "not reporting much occupational impact and has had moderate social impact from PTSD." In January 2009, a VA Mental Health consultation note reflects that the Veteran exhibited symptoms of anger, irritability, isolating from others, social withdrawal, nervousness in crowds, and frequent thoughts about Vietnam. The examiner noted the Veteran's "intense demeanor" and underlying anger. Based on the above, the Board finds that, prior to September 8, 2009, the Veteran's PTSD with alcohol abuse and dementia resulted in occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Thus, the Board finds that his symptoms more nearly approximated the criteria for a 30-percent rating. See 38 C.F.R. § 4.130. In sum, there is no credible evidence that, prior to September 8, 2009, the Veteran's psychiatric disorder was manifested by symptoms such as flattened affect, altered speech, panic attacks, difficulty understanding, impaired memory, impaired judgment, impaired abstract thinking, or other symptoms of similar severity, frequency, or duration. While there is evidence of depressed mood and social problems (including marital strife), the record reflects that the Veteran was able to maintain social relationships and sustain employment without significant problems. Accordingly, the relevant evidence during this period does not establish occupational and social impairment with reduced reliability and productivity, nor is there credible evidence of impairment with deficiencies in areas such as work, judgment, thinking, or mood. The evidence is likewise against a finding of total occupational and social impairment. For the foregoing reasons, prior to September 8, 2009, entitlement to a rating in excess of 30 percent is denied. From September 8, 2009 From September 8, 2009, the Board finds that the criteria for a 70-percent rating have been met. The Veteran was seen at a VA Mental Health clinic on September 8, 2009, reporting that his son was murdered a week prior. He expressed his belief that his son's wife had murdered his son, stating, "All I can think about is ways to kill her." He exhibited symptoms of insomnia, irritability, depressed mood, crying spells, flight of ideas, nightmares, intrusive recollection, hypervigilance, poor concentration, and "poor" insight. A GAF score of 45 was assigned. Later that month, the Veteran was seen at a private facility with presenting symptoms of depression and homicidal ideation. In December 2009, the Veteran underwent a neurobehavioral examination and psychological testing. The examiner opined that "[t]here is total occupational and social impairment due to PTSD signs and symptoms," reasoning that the Veteran was unable to hold a job due to symptoms of arousal and authority problems. The examiner further cited the Veteran's marital problems, alcohol abuse, history of fighting, "severely impaired" immediate memory, and "significantly impaired Attention due to PTSD." In April 2010, the Veteran underwent a VA PTSD examination. The examiner indicated that the Veteran's alcohol abuse was secondary to his PTSD, and that symptoms related to his alcohol abuse could not be distinguished from his other psychiatric symptoms. The examiner opined that the Veteran's combined symptomatology resulted in reduced reliability and productivity. In support, the examiner identified symptoms of insomnia, avoidance, irritability, easy startling; psychosocial stressors including marital problems and a history of fighting; and neurocognitive symptoms such as poor memory, poor executive functioning, and poor visuospatial abilities. It was noted that the Veteran's prognosis was poor because his dementia was likely irreversible and he was resistant to treatment; it was unlikely that he could return to his prior work. The examiner further observed that the Veteran's cognitive difficulties would make it difficult for him to remember and follow instructions, exercise judgment, and adapt to changes. It was noted that the Veteran's alcoholism made him "dangerous." In July 2010, the Veteran reported that he had not had anything to drink for two months. However, he reported ongoing anxiety and stated that he had thoughts of harming his estranged wife. He denied suicidal ideation. A GAF score of 55 was assigned. The Veteran divorced his wife in 2011. In November 2012, he underwent another VA PTSD examination. The Veteran reported that he had no friends and had limited leisure, recreational, or social interests. He reported mostly staying at home. The examiner opined that the Veteran's symptomatology resulted in occupational and social impairment with reduced reliability and productivity. Specific symptoms of anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances were identified. The examiner further noted that the Veteran's PTSD would have a "serious impact" on his ability to sustain work performance at acceptable levels. In May 2015, the Veteran underwent another VA PTSD examination. He denied any ongoing treatment for his PTSD. The examiner identified symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The examiner opined that the Veteran's symptomatology resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a November 2015 addendum opinion, a VA clinical psychologist noted that the Veteran's irritability and detachment would cause problems in the workplace, but if given the chance to work in an environment with minimal social contact, he could be successful. The examiner noted that some mild-moderate problems may exist regarding reliability at work given the Veteran's mood disturbances. Moreover, he may have moderate problems adapting to stress at work. The examiner noted that the Veteran would be capable of maintaining professional behavior, attending to workplace hygiene, and maintaining appropriate dress and grooming. In March 2017, the Veteran submitted an evaluation from a private psychologist. The report reflects the psychologist's opinion that the Veteran's symptoms were productive of occupational and social impairments with deficiencies in most areas since at least January 2009. In support, the examiner explained that the Veteran exhibited symptoms of depressed and angry mood, irritability, difficulty concentrating, memory problems, intrusive thoughts, avoidance, cognitive distortions, and arousal. The examiner specifically disagreed with prior findings that the Veteran's PTSD was less debilitating as he believed they did not represent the Veteran's actual circumstances. Based on the above, the preponderance of the evidence reflects that the Veteran's PTSD with alcohol abuse and dementia has been productive of occupational and social impairment with deficiencies in most areas since September 8, 2009-the date the Veteran reported that his son had been murdered and that all he could think about was ways to "kill" his son's wife. From that date forward, the record demonstrates significant impairment manifested by the following: deficiencies in work performance (including an inability to perform the duties required in the Veteran's most recent profession); depression causing disturbances in motivation and mood; impaired impulse control manifested by episodes of anger and irritability-specifically to include episodes of homicidal ideation directed at his son's wife and his estranged wife; difficulty in adapting to stressful situations; and an inability to establish and maintain effective relationships. The Board recognizes that the Veteran's symptoms appeared to improve after the April 2010 examination. However, the November 2012 and May 2015 examination reports reflect that several of the symptoms noted in the 70-percent criteria persisted, such as difficulty in adapting to stressful situations and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130. The Board finds that a 70-percent rating is warranted beginning on September 8, 2009, as the record does not establish distinct periods of severity that would justify a staged rating. A 100-percent rating is not warranted, however, as the preponderance of the evidence is against a finding of total occupational and social impairment due to PTSD with alcohol abuse and dementia at any time during the period on appeal. As noted above, the VA examination reports of record reveal no evidence of regular panic attacks, severe memory loss, gross impairment in thought processes, suicidal ideation, or obsessional rituals. The Veteran regularly appeared at VA appointments well-groomed and with good hygiene, and was consistently alert and socially appropriate. He has denied persistent delusions or hallucinations, and is able to communicate clearly. There is no evidence of psychosis; indeed, the record shows that the Veteran has been orientated to time and place. Although the Board recognizes that the Veteran has exhibited homicidal ideation, there is no evidence to indicate that he has acted on such impulses, and he has not been determined to be a persistent danger to himself or others. In light of the above, the Board finds that the Veteran's symptoms, considered in isolation from his other service-connected disabilities, do not demonstrate total impairment, as illustrated by the criteria for a 100-percent rating. See id. In sum, the evidence shows that the Veteran's PTSD with alcohol abuse and dementia did not meet the criteria for a rating in excess of 30 percent prior to September 8, 2009. However, from that date forward, his overall impairment, while not squarely within the symptomatology for a 70-percent rating, more nearly approximates occupational and social impairment with reduced reliability and productivity. Therefore, an increase to 70-percent disabling, but no higher, will be granted from September 8, 2009 to May 28, 2015. ORDER Prior to September 8, 2009, entitlement to a rating in excess of 30 percent for PTSD with alcohol abuse and dementia is denied. From September 8, 2009 to May 28, 2015, entitlement to a 70-percent disability rating, but no higher, for PTSD with alcohol abuse and dementia is granted. From May 28, 2015, entitlement to a rating in excess of 70 percent for PTSD with alcohol abuse and dementia is denied. REMAND After reviewing the record, the Board finds that additional evidentiary development is necessary with respect to the remaining claims on appeal. See 38 C.F.R. § 19.9. Service Connection for ED The Board finds that an addendum medical opinion is needed regarding the Veteran's claim for service connection for ED. Notably, the most recent VA medical opinion, dated in November 2015, only addressed whether the Veteran's medications caused his ED. As the opinion ignores the Veteran's contention that his PTSD causes or aggravates his ED, it is inadequate. See also Abstract, "Sexual dysfunction in combat veterans with post-traumatic stress disorder" (November 2002) (received by VA in October 2012). Thus, a remand is warranted. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). TDIU The Board finds that an addendum medical opinion is needed regarding the Veteran's application for a TDIU, as the medical and lay evidence of record is conflicting as to whether the Veteran is unemployable due to his service-connected disabilities. The Board is aware that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one but rather a determination for the adjudicator. See Geig v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, in light of the conflicting evidence, the Board finds that an addendum opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from August 2016 to the present. 2. Forward the claims file to the appropriate specialist for an addendum regarding the Veteran's claim for ED. After reviewing the entire claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's ED was caused or aggravated by any of his service-connected disabilities, to include PTSD with alcohol abuse and dementia. Specifically discuss the November 2015 VA examiner's statement that ED can have "psychogenic" causes. Also discuss the article submitted by the Veteran in October 2012 asserting that combat veterans with PTSD "experience a significantly higher rate of sexual dysfunction than do veterans without PTSD." 3. Forward the claims file to the appropriate specialist for an addendum regarding the Veteran's application for a TDIU. After reviewing the entire claims file, particularly to include the VA examination reports of record, the June 2013 Vocational Assessment, and the March 2017 evaluation completed by the Veteran's private psychologist, the examiner should provide a detailed explanation of the functional impairment caused the Veteran's PTSD with alcohol abuse and dementia in light of his education and work history. The examiner should take particular care to discuss the Veteran's lay statements regarding his inability to perform work-related duties due to his service-connected symptoms. 4. After completing all indicated development, readjudicate the remaining issues on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). (CONTINUED ON NEXT PAGE) ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs