Citation Nr: 1752892 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-07 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) with alcohol and substance abuse in long-term remission. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for PTSD and assigned an initial 50 percent disability rating, effective the October 6, 2010 date of claim. The Veteran timely appealed the initial rating assigned. During the pendency of the appeal, in a February 2014 rating decision, the RO increased the disability rating to 70 percent for PTSD, also effective October 6, 2010. As the Veteran did not indicate he was satisfied with this rating, the claim for a higher initial rating for PTSD is still before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In a September 2015 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability (TDIU), effective October 6, 2010. In his substantive appeal (via VA Form 9), the Veteran requested a Board videoconference hearing and was subsequently scheduled to testify in December 2016. However, according to the Veterans Appeals Control and Locator System (VACOLS), the Veteran failed to appear and in a December 2016 letter, the Veteran withdrew his hearing request. FINDING OF FACT For the entirety of the pendency of the claim, the Veteran's service-connected PTSD with alcohol and substance abuse in long-term remission symptoms most closely approximated total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial 100 percent rating for PTSD with alcohol and substance abuse in long-term remission are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue decided herein (given that an initial total schedular rating for PTSD is being granted), further discussion of the VCAA is not necessary at this time. II. Merits 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 the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform 100 percent rating for the entirety of the period on appeal. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, certain mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. The Veteran has demonstrated a complex psychiatric disability picture over this period. In general, his psychiatric symptoms during this period appear attributable to service-connected PTSD with alcohol and substance abuse in long-term remission. Mittleider v. West, 11 Vet. App. 181 (1998). Thus, all psychiatric symptoms are considered part of the service-connected PTSD disorder. The Veteran is service-connected for PTSD with alcohol and substance abuse in long-term remission, rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, the general rating formula for mental disorders. Under this diagnostic code, a 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 total schedular rating of 100 percent 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 ability 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran was afforded a VA examination in August 2011. He reported living alone and not seeing people for weeks at a time. Symptoms of severe extreme anger, social isolation, withdrawal, paranoia, nightmares, and sleep disturbance were found. He reported that these symptoms affected his daily functioning, due to lack of sleep and obsessive behavior. Additional symptoms of avoidance behavior, diminished interested in activities, detachment, restricted affect, irritability or outbursts of anger, and hypervigilance were found. The Veteran denied a history of violent behavior or suicide attempts. On mental status examination, his orientation was within normal limits. Appearance, hygiene, and behavior were appropriate. He had good eye contact. Mood was described as anxiety with depressed mood. Communication, speech, and concentration were normal. There were signs of suspiciousness and a history of hallucinations, but no delusions. There were also signs of obsessive compulsive behavior due to the Veteran controlling his living environment and rarely leaving his home except to obtain supplies. Thought process and judgment were normal. Homicidal ideations were present, but he denied suicidal thoughts. As for functional impact, the Veteran reported a history of working as a restaurant manager for 20 years. He reported having good relationships with his former coworkers and his supervisor. He stated that he was currently unemployed, but not due to his mental condition. In January 2011 and January 2012 letters, the Veteran's treating VA clinical psychologist, since 2010, reported that the Veteran had been married twice and was not presently in a relationship nor interested. The Veteran reported living by himself and going up to four weeks without seeing people. Aside from telephone conversations with his daughter, he reported almost no social contact. He shops for groceries and attends therapy sessions. The Veteran has not worked since 1994. The VA clinical psychologist noted that the Veteran has attended therapy sessions. He has been very depressed and has a negative outlook on life. Potential for committing suicide was noted. He reported previously having suicidal thoughts, but that since his physical health had improved, these thoughts were infrequent. He also reported having anger, temper and paranoia symptoms. The VA clinical psychologist concluded that the Veteran suffered from chronic and severe PTSD that has been interfering with securing long-term productive employment. The examiner further opined that the Veteran is not able to maintain full-time employment. The Veteran was afforded a VA examination in December 2013. Review of the claims file was noted. Diagnoses of PTSD and alcohol and substance abuse, in long-term remission, were provided. The examination report found that it was not possible to differentiate which symptoms were attributable to each diagnosis. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he has not abused substance since the 1980's. He reported suicidal ideation, but denied homicidal or violent behavior. He also reported being detained two months prior, due to an outstanding warrant related to child support. Symptoms of recurrent distressing dreams, avoidance, persistent exaggerate negative beliefs or expectations about oneself, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from other, persistent inability to experience positive emotions, irritable behavior and anger outbursts, reckless or self-destructive behavior, hypervigilance, and exaggerated startle response. Additional symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivations and mood, inability to establish effective relationships, obsessional rituals which interfere with routine activities, and moderate to severe anger were found. The examiner remarked that the Veteran's symptoms of antisocial and asocial behavior and withdrawal, road rage, anger, sleep issues, and anxiety have escalated. The examiner stated that the Veteran does not pose any threat of danger or injury to self or others. In a February 2014 letter, the Veteran's treating VA clinical psychologist opined that the Veteran suffers from chronic and severe PTSD that has been interfering with his ability to secure long-term productive employment. The examiner again opined that the Veteran is not able to maintain full-time employment. Based on the above, an initial 100 percent rating for the Veteran's PTSD disability is warranted. The Veteran's PTSD symptoms have remained constant since he filed his claim for service connection. The Veteran has been unemployed, and his treating VA clinical psychologist has consistently opined that his PTSD disability causes total occupational impairment. Thus, the question remaining is whether the Veteran's symptoms more nearly approximate total social impairment. Here, the Veteran has consistently reported being prone to isolation and obsessive behavior in controlling his environment. Notably, at August 2011 VA examination, he reported living alone and that he would have no social interactions for up to four weeks when he would leave his home to obtain supplies. See also January 2011 and January 2012 VA treatment letters. Further, at the most recent December 2013 VA examination, the examiner remarked that the Veteran's symptoms of antisocial and asocial behavior and withdrawal, road rage, anger, sleep issues, and anxiety have escalated. Thus, the Veteran has had consistent symptoms of significant social isolation throughout the pendency of the claim. Therefore, the symptoms and overall impairment caused by the Veteran's PTSD disability have throughout the pendency of the claim more nearly approximated total social and occupational impairment. For the above stated reasons, an initial rating of 100 percent for service-connected PTSD is warranted. Discussion of an extraschedular rating is therefore not required. Cf. Colayong v. West, 12 Vet. App. 524, 537 (1999) ("Hence, on remand the Board is required to address an extraschedular rating for the veteran's service-connected Pott's disease if it is not rated 100% as a schedular matter") (emphasis added). ORDER Entitlement to a 100 percent rating for PTSD with alcohol and substance abuse in long-term remission is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs