Citation Nr: 1806225 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-19 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 50 percent for the service connected anxiety disorder not otherwise specified (NOS), with posttraumatic stress disorder (PTSD) features and alcohol abuse. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from July 1965 to April 1969 and was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April and November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Providence, Rhode Island. The Board notes that the Veteran filed his service-connection claim for his psychiatric disability on August 5, 2008. The RO awarded service connection in an April 2009 rating decision, and assigned an initial rating of 30 percent effective August 5, 2008. In correspondence received in September 2009, the Veteran asked VA to reevaluate his disability. The RO denied a claim for increase in a November 2009 rating decision. In December 2009, the Veteran disagreed with the RO's determination and initiated this appeal. Significantly, the Veteran's December 2009 notice of disagreement (challenging the 30 percent rating) was filed within one year of the initial rating determination in April 2009 (which assigned the initial 30 percent rating). The Veteran also submitted new and material evidence between the April 2009 and the September 2009 rating decisions specific to the severity of his disability. See 38 C.F.R. § 3.156(b). As such, the Board finds that the Veteran's current claim for increase is indeed an "initial" rating claim, stemming from the RO's April 2009 rating decision. In May 2012, the Veteran testified at a hearing held at the RO before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board notes that in an August 2015 letter, the Veteran was informed that the VLJ who conducted the May 2012 hearing was no longer employed by the Board and he was given the option of appearing at another hearing before a different VLJ. In a response received in September 2015, the Veteran indicated that he did not wish to appear for another hearing. In November 2013, the Board granted an increased rating of 50 percent for the Veteran's service-connected psychiatric disability (which the RO made effective the date of the Veteran's original claim for service connection, August 5, 2008), and remanded the claim for a TDIU rating for further development. The Veteran appealed this decision, to the extent it denied a rating higher than 50 percent, to the United States Court of Appeals for Veterans Claims (Court). In October 2014, the Court vacated the November 2013 Board decision, and remanded that matter back to the Board for development consistent with the parties' Joint Motion for Remand and to Stay Proceedings (Joint Motion). The case was remanded in December 2014 and returned to the Board for further appellate action. In November 2015, the Board denied a rating exceeding 50 percent for the Veteran's service-connected psychiatric disability, and remanded the claim for a TDIU rating for further development. The Veteran appealed this decision to the Court. In May 2017, the Court again vacated the November 2015 Board decision to the extent that a rating greater than 50 percent was not awarded, and remanded that matter back to the Board for development consistent with its Memorandum Decision. In a March 2017 Decision, the Board awarded a TDIU, effective October 1, 2011. That issue is no longer in appellate status. FINDING OF FACT For the entire appellate period (i.e. from August 5, 2008) the Veteran's anxiety disorder NOS, with PTSD features and alcohol abuse symptomology more nearly approximates occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating for unspecified anxiety disorder, with PTSD features and alcohol abuse of 70 percent, but no higher, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9413 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations 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.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Under the General Rating Formula for Mental Disorders, 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. 38 C.F.R. § 4.130, DC 9413. 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. Id. A 100 percent rating is warranted if there is 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. The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating. The list of symptoms merely 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. The Board must consider all symptoms of a veteran's condition which affect the level of occupational and social impairment. 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. Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002). Thus, the Board must consider the actual level of occupational and social impairment caused by the Veteran's anxiety disorder throughout the pendency of his claim. The Veteran is seeking a disability rating greater than 50 percent for his service-connected unspecified anxiety disorder with PTSD features and alcohol abuse. Although a September 2008 VA examination report appears to show that the Veteran's disability manifested at the time in mild to moderate symptomatology, statements in 2008 and 2009 from the Veteran's Vet Center therapist, a licensed marriage and family therapist (LMFT), describe more severe symptoms. In these statements she offered her opinion as to the current severity of the Veteran's psychiatric symptoms, which included estrangement from others, avoidance of responsibilities, severe survivor guilt, depression, aggressive tendencies, social isolation, avoidance of reminders of Vietnam, memory and concentration problems, difficulty sleeping, low self-esteem, and distressing dreams/memories. The Veteran reported that, when frustrated, he sometimes became suicidal or homicidal, but had never acted on these feelings. He would also sometimes throw and break things when angry, but would then regret his actions. The examiner also noted that he experienced a great deal of "road rage" that presented difficulties for him as a professional truck driver. She felt he had a GAF score of 55, which she stated reflected that he had difficulty with social and work related interactions and had longstanding issues that significantly impacted his ability to maintain friendships and work relationships. See letters from J. S., LMFT (licensed marriage and family therapist) dated December 2008 and January 2009; see also Vet Center Initial Assessment dated and progress notes dated December 2008 - February 2009. In March 2009, the Veteran's girlfriend submitted a statement describing in general how his anxiety disorder affected their daily lives and impacted him both socially and occupationally. She also gave specific instances of the Veteran's behavior including that the Veteran seemed unable to give or receive affection. He sometimes got depressed over small things. He would display sadness and guilt about his friend who died in Vietnam. He had nightmares and road rage. She felt the Veteran also drank too much. In March 2009, the Veteran attended a VA examination. His affect was restricted, and he was somewhat tearful at times. He described his mood as irritable and depressed. The Veteran reported little change in his personal history since his last examination. He continued in an on again off again relationship with his girlfriend and had very good relationships with his children and grandchild. His relationships with his siblings were fine. He was still employed as a propane truck driver, but planned to reduce his work to part time. He had a long, steady, and stable work history and got along with co-workers, but no longer enjoyed working. He stated that he wanted to enjoy life more and not work until he died. He reported having good days and bad days, but was easily aggravated. He thought about death all the time and sometimes thought that life was not worth living, since he had so many friends who had passed away. He sometimes had thoughts about driving into a tree, but had no intent or plan to do so. He denied having thoughts about hurting others. Upon mental examination, there was no evidence of obsessions, compulsions, ideas of reference, hallucinations, delusions, phobias, social fears, excessive worry, hypomania, mania, panic attacks, or agoraphobia. The Veteran did have symptoms of irritable and depressed mood and anhedonia and there was some suicidal ideation, but no intent or plan or current homicidal thoughts. There was also ongoing alcohol abuse. Insight and judgment were adequate. Despite stating otherwise, the Veteran had some interests and hobbies, including bowling. He avoided crowds and felt detached and emotionally distant from others and being unable to have pleasant or loving feelings, but maintained friendships with a few Veterans and had friends from his bowling league whom he saw weekly. He reported having difficulty completing tasks in his everyday household routine such as doing dishes, but was generally able to take care of his activities of daily living. He endorsed nightmares, irritability, anger outburst, difficulty concentrating, particularly at work. The examiner diagnosed anxiety disorder NOS with features of PTSD, depressive disorder NOS, and alcohol abuse, and continued the GAF score of 55, reflecting a moderately severe level of impairment in occupational, social, and interpersonal functioning. In an August 2009 VA treatment note, the Veteran reported hallucinations in the form of seeing "shadows out of peripheral vision when lying there trying to get to sleep, sometimes thinks it is his friend. Additional VA treatment notes dated August to October 2009 show that the Veteran sought psychotropic medication to treat his anxiety symptoms at the recommendation of his therapist. In general, the Veteran continued to struggle with poor judgment with regard to alcohol use, depressed mood, anger/irritability, and anxiety. He reported delayed onset sleep and mid-cycle awakenings. He described his mood as occasionally "ok" and his energy level was fair. Motivation was good, but he had some difficulty with concentration. He denied recent suicidal ideation. In September 2009, the Veteran was prescribed medication for nightmares as well as an antidepressant. He reported that his anxiety symptoms were somewhat improved since being in therapy and agreed that alcohol might be contributing to some of his symptoms and was motivated to stop drinking. In November 2009, the Veteran's Vet Center therapist wrote an additional letter on his behalf. She stated that the Veteran had symptoms including memory loss for the names of close relatives, impaired impulse control resulting in unprovoked outbursts and irrational violent behaviors, difficulty establishing and maintaining close personal and interpersonal relationships, panic attacks several times per week, difficulty understanding and responding to complex work tasks, unexplained anxiety, lack of motivation and enjoyment in daily life, nightmares, alcohol abuse, and anger. She stated that the Veteran stopped working due to PTSD at the recommendation of his doctor. See November 2009 Correspondence; see also Vet Center progress notes dated March 2009-November 2009. In a January 2010 VA treatment note, the Veteran stated that he is getting nightmares two times a week and gets angry at times which has been going on for a long time. He also noted that he has been seeing his Vet Center therapist every two weeks for the past year and feels "it is helping him, mainly in that he can tell her things he does not share with others in general." In June 2010, the Veteran reported nightmares have been increasing and that he still gets "moody" with some down periods, but that these were not sustained periods. He also continued to drink on the weekends, which concerned his girlfriend. He noted some anxiety around caring for his young grandson who has ADHD, which aggravated the Veteran; however he still liked caring for him. On the other hand, the Veteran was able to enjoy things, such as baseball games and was looking forward to his daughter's wedding. There was no suicidal ideation. Id. In October 2010, the Veteran described a recent road rage incident, which worried his girlfriend. He described wanting to hurt a driver who had dangerously cut him off, but that he was able to stop himself. However, the Veteran also stated that since then he started the medication Zoloft and noted that he had calmed down a little and did not yell so much at his grandson. He then noted that he had been feeling "pretty good" and his interest and motivation had improved since being on Zoloft and that he was talking more. There was no suicidal ideation and he had cut down drinking, but still has occasional beers, but avoids getting "sauced." His girlfriend also noticed a difference. In November 2010, the Veteran continued to note a decrease in anxiety and was feeling calmer. Although he still occasionally felt down, he denied any sustained periods and was able to enjoy things such as time with his grandson. He continued to struggle with nightmares, but medication helped. He still had some intrusive memories and avoidance issues, but was trying to socialize more with friends which was helpful. He continued to work part-time. Id. The most recent entries show that in February 2011, the Veteran reported generally feeling "pretty good." He had occasional down moods, but denied depression. His interest, appetite, and sleep were all good although he still had periods of anxiety. In general things were good between him and his girlfriend. In May 2011 shows the Veteran had a near complete remission of severe depression and PTSD. The Veteran reported a decrease in depression and (enjoys things and is not just sitting around) thinks the improvement is due both to Zoloft and looking forward to getting out of New England for the winter. The Veteran reported that his depression for most part was in remission, but that his PTSD symptoms could be exacerbated by heavy drinking, which he was trying to avoid and for most part had been able to do so. Id. Notwithstanding the assessment above, the Veteran's Vet Center therapist wrote a fourth letter in August 2011, claiming that the Veteran had to stop working due to PTSD symptoms. These symptoms included difficulty thinking clearly especially when under stress, difficulty controlling his anger when he thinks someone is standing or walking behind him, concentration and memory difficulties that caused him to forget the date, social isolation, difficulty trusting people, and problems with impulse control. She wrote that the Veteran physically attacked people who came up behind him. See August 2011 Correspondence. In August 2011, the Veteran attended a VA psychiatric examination. At that time, he reported that he avoided spending time at his girlfriend's house because it was near a gun club and he felt that the noise gave him flashbacks of Vietnam. He continued to see a few friends regularly and loved spending time with his children and grandchildren. He retired from his job as a truck driver in 2009 and while there he had thoughts of crashing the truck, but thoughts of his family stopped him from considering suicide more seriously. He had a good work ethic and there were never any issues with him at work. On a typical day, the Veteran watched television, went out walking, and ran errands, but reported having some lack of motivation to do other things. He occasionally did volunteer work with Veterans. The Veteran used to have an alcohol problem, but had recently cut back on drinking. He continued seeing a therapist and a psychiatrist. Noted symptomatology included distressing thoughts and dreams about Vietnam, flashbacks, avoidance, feelings of detachment, and a sense of a foreshortened future. The Veteran also had sleep troubles, irritability, outbursts of anger, and an exaggerated startle response. Other symptoms included depressed mood, anxiety, mild memory loss, impaired abstract thinking, and suicidal ideation. In addition to PTSD, the examiner diagnosed a depressive disorder and alcohol abuse. She assessed the Veteran as having occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In addition, the examiner noted that the Veteran's symptoms have a significant impact on his daily functioning. In a September 2011 correspondence, J.P.B. stated that he has known the Veteran for several years and in that time he has heard the Veteran speak on taking his own life because "things are getting too hard to handle" while both drunk and sober. In May 2012, the Veteran attended a Board hearing. He testified that he has told his therapist and representative that he would be better off dead. Further, he stated that he lived in a basement apartment and preferred to be by himself for the most part, but had friends who were also combat Veterans that he spent time with. He also described an occasion, where he chased a car that had cut him off while driving, but did not confront the other driver. He reported that his treatment providers had advised that he stop driving a propane truck because of the safety issues when he became angry on the road. He related how he told his daughter that he could not watch his grandson anymore because he had no patience and was afraid that he might hurt him. Although his ex-wives had told him he drank excessively, he no longer drank as much as he used to because of interactions with medication that he was taking. In January 2015, the Veteran underwent a private employability evaluation by a vocational rehabilitation consultant. During an hour-long phone interview, the Veteran stated that he has experienced symptoms of PTSD since 1967. He stated that his friend who was killed in combat has been with him "all the time" and he has been plagued by nightmares over the years. He prefers to stay inside and tries to walk in the early morning before any of his neighbors are up. He will make a short trip by himself to a gas station, but if leaving home for shopping or other reasons he goes out with his girlfriend as she does most of the driving because of his past angry outbursts and behavior behind the wheel. With regard to the Veteran's post-service employment history she noted the Veteran was employed full-time as a propane truck driver almost immediately after service until his retirement in April 2009. She noted that prior to that when the Veteran began taking medications for his psychiatric condition in 2008 he felt drowsy at times when driving and for that reason stopped working. Although the Veteran later returned to work on a part-time basis during between 2009 and 2011, he left work again after a slip and fall that resulted in an elbow fracture. At that time he also determined that it was time to stop working for good due to his difficulty managing his anger while on the road and did not return to work after the fracture healed and he has not worked in any capacity since that time. Following a review of the Veteran's file including his educational background, work history, and training, the vocational expert found that the Veteran's anxiety disorder symptoms have severely impacted his ability to work. See January 2015 Employability Evaluation; see also follow-up opinion dated May 6, 2015. In February 2015, the Veteran attended a VA Mental Disorders examination. The Veteran complained of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood, irritability, nightmares, hypervigilance, feelings of guilt, exaggerated startle response, and avoidance of crowds. He stated that he could not get the memories of Vietnam out of his head, which makes him irritable and anxious. However, his reaction to those memories is to go for a walk or occupy himself until they pass. He reported a major change since his last VA exam, in that he and his girlfriend of 10 years relocated to Florida, where previously, he had preferred to live alone. He keeps in touch with his daughters and grandson weekly and describes his relationship with his girlfriend as "not bad." In terms of occupational functioning, the Veteran reports that he has been retired since 2009. He describes his typical day as waking up around 5 am, eating breakfast, taking his medications and then going for a walk. He returns home and reads the newspaper and does puzzles. Other leisure activities include playing horseshoes with other veterans in the park, yard work, watching television, and bowling. He continued to drink alcohol, but denied rehab, detox, or any driving under influence. During the mental status evaluation, the Veteran was alert, oriented and pleasant. He was engaging with good recall of the events and no evidence of distractibility. However his mood was preoccupied with the past events and affect was slightly euthymic. Insight and judgment fair. He denied suicidal/homicidal ideation, plan or intention. He has never attempted suicide, but occasionally gets suicidal ideation when frustrated. After reviewing the Veteran's claims file, his self-reported medical history, and current symptoms, the examiner concluded the Veteran's level of impairment with regards to all mental diagnoses is best summarized as occupational and social impairment with reduced reliability and productivity. In an April 2015 Affidavit, the Veteran stated that his depression is "real bad about 3-4 days a week. I isolate myself and won't shower." Further, he stated that when he is angry, he cannot control his violent outbursts. In addition, he stated that "even now I cannot be alone with my grandchildren because of my anger issues... There was an incident where I almost hit my grandson when he was about eight years old because he irritated me to the point of getting me angry while I was babysitting him." Following a review of the relevant evidence of the record, the Board finds that a rating 70 percent for the Veteran's anxiety disorder NOS, with PTSD features and alcohol abuse is warranted for the entire appeal period. In this regard, the Board finds that such symptomatology, to specifically include the Veteran's nightmares, violent outbursts, suicidal ideations, impulse control issues, are similar or like the symptoms contemplated with a 70 percent rating, and ultimately contribute to occupational and social impairment in most areas. Although evidence of record at times suggests that the Veteran has "loving and positive relationships" with his daughters and grandson, the Board cannot disregard the Veteran's own statements regarding his inability to be alone with his grandson for fear of hitting him in anger. Further, the Board notes numerous instances where the Veteran indicated to his therapist that he suffered from impaired impulse control resulting in unprovoked outbursts and irrational violent behaviors, difficulty establishing and maintaining close personal and interpersonal relationships, panic attacks several times per week, difficulty understanding and responding to complex work tasks, unexplained anxiety, lack of motivation and enjoyment in daily life, nightmares, alcohol abuse, and anger. While the Board notes that many of the assertions made by the Veteran to his therapist are not identified by the treatment records, it must also take into account the Veteran's report that he can tell his therapist things he does not share with others in general. In addition, the Board recognizes the multiple instances throughout the record of the Veteran's suicidal ideations, a symptom specifically contemplated by the 70 percent rating, and in this case, contributing to occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Finally, the Board notes in March 2017, the Veteran was granted total disability based on individual unemployability specifically for his symptoms involving road rage, exaggerated startle response, and suicidal ideations, further lending credence that the Veteran suffers from occupational and social impairment, with deficiencies in most areas. Thus, the Board concludes that, despite what appear to be fluctuations in severity (usually correlated with use of prescription medications), the overall impact of the Veteran's service-connected psychiatric disability is so severe as to warrant a 70 percent initial rating for the entirety of the appeal period. That stated, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show that the Veteran has total occupational and social impairment. Indeed, he maintains relationships, albeit strained, with his girlfriend and children. While the record shows one instance of the Veteran experiencing a hallucination in 2009, there is no evidence or allegation of persistent delusions or hallucinations. Moreover, while the Board notes the Veteran at times would not shower for days at a time in his April 2015 affidavit, the Veteran has consistently been found to be appropriate hygiene and appearance upon examination, and the evidence does not show an inability to perform activities of daily living to include maintenance of minimal personal hygiene. As such, the assignment of a 70 percent initial rating, but no higher, is warranted. ORDER Entitlement to an initial 70 percent rating for service connected anxiety disorder NOS, with PTSD features and alcohol abuse, is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs