Citation Nr: 18142581 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-24 296 DATE: October 17, 2018 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) with alcohol abuse, is granted, for the entire period on appeal, subject to the laws and regulations governing the payment of monetary benefits. The appeal as to the issue of entitlement to a TDIU is dismissed. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service-connected PTSD with alcohol abuse symptoms have more nearly approximated total occupational and social impairment. 2. For the entire period on appeal, the Veteran has been granted a 100 percent schedular rating for PTSD with alcohol abuse. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a rating of 100 percent for PTSD with alcohol abuse, for the entire period on appeal, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The grant of a 100 percent rating for PTSD with alcohol abuse renders moot the appeal for a TDIU. 38 U.S.C. §§ 1155, 5101(a), 5121, 5121A; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 2008 to October 2008 and April 2011 to December 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In his May 2016 VA Form 9 (substantive appeal), the Veteran indicated that he was only appealing the issue of an increased rating for his PTSD. Thus, no further action was taken by the RO on the claim for entitlement to service connection for tinnitus and it was not certified to the Board for review. The Board finds that this issue is not before the Board. In September 2018, the Veteran submitted additional pertinent medical evidence, and did not waive initial RO review of such evidence. See 38 C.F.R. § 20.1304(c). However, the Board has jurisdiction to review such in the first instance, as the Veteran has not expressly requested initial evidentiary review by the Agency of Original Jurisdiction (AOJ) and no formal waiver of AOJ consideration is required as his May 2016 Substantive Appeal was received after February 2, 2013. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse The Veteran seeks a rating in excess of 70 percent for his service-connected PTSD. In May 2016, the Veteran stated that his VA treatment provider said that he should be rated at 100 percent because he heard voices and he had made several suicide attempts. The Veteran stated that he had been currently charged with murder, in which he did not remember what happened. He also stated that his mother assisted him with is medication and everyday living. He stated that he was seriously affected from his psychiatric condition, his life had changed drastically, and he was not functioning normally. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Service connection for PTSD with alcohol abuse with an evaluation of 50 percent was granted effective from December 30, 2011, in a December 2012 rating decision. The Veteran filed a claim for increased rating in August 2014. A rating decision issued in September 2014 increased the disability rating to 70 percent effective August 19, 2014. The Veteran filed another claim for an increased rating in October 2014. A rating decision issued in March 2015 continued the 70 percent rating for the Veteran’s PTSD with alcohol abuse. The Veteran is currently assigned a 70 percent rating for his service-connected PTSD with alcohol abuse according to 38 C.F.R. § 4.130, Diagnostic Code 9411 and the General Rating Formula for Mental Disorders. A 70 percent evaluation is warranted where there is 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Vazquez-Claudio, supra. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a Veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204, 208 (1994). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-5, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015). However, this change does not apply to claims that were certified for appeal to the Board prior to August 4, 2014 even if such claims were subsequently remanded. Id. As the Veteran’s claim was certified to the Board in May 2018, the DSM-IV is no longer applicable to his claim. The evidence reflects that the Veteran has been diagnosed with other nonservice-connected psychiatric disorders. The use of manifestations not resulting from service-connected disease or injury is to be avoided when establishing the service-connected disability evaluation. 38 C.F.R. § 4.14. However, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). VA treatment records reflect a diagnosis of PTSD, alcohol dependency improved, and psychosis not otherwise specified (NOS) from October 2014; a diagnosis of PTSD and major depressive disorder (MDD) with psychosis from January 2015; a diagnosis of severe PTSD, severe major depression with psychosis rule out (r/o) schizoaffective from November 2015; and a diagnosis of schizoaffective disorder from May 2017. The Veteran was afforded a VA examination in September 2014, which reflected a diagnosis of chronic PTSD; a VA examination in February 2016, which reflected a diagnosis of PTSD and major depressive disorder with psychotic features; and a VA examination in October 2017, which reflected a diagnosis of PTSD by history and cannabis use disorder. The Veteran was afforded a Social Security Administration (SSA) examination in March 2015, which reflected a diagnosis of PTSD, mood disorder, and depression with numerous previous suicide attempts, and a SSA examination in April 2015, which reflected a diagnosis of chronic PTSD, recurrent moderate major depressive disorder, psychotic disorder NOS, and early partial remission of alcohol dependence. The Veteran also submitted a private disability benefits questionnaire (DBQ) in August 2014, which reflected a diagnosis of PTSD. The Board notes that the August 2014 private examiner and the September 2014 VA examiner indicated that the Veteran did not have more than one mental disorder diagnosed. The March 2015 SSA examiner did not indicate whether it was possible to differentiate which symptoms were attributable to the Veteran’s PTSD, mood disorder and depression. The Board notes that although the April 2015 SSA examiner specified which symptoms were attributable to each of the Veteran’s diagnoses, the examiner did not discuss the etiology of the Veteran’s recurrent moderate major depressive disorder or psychotic disorder NOS. Also, although the February 2016 VA examiner noted that it was possible to differentiate which symptoms were attributable to the Veteran’s diagnosis of PTSD and major depressive disorder with psychotic features, the examiner opined that the Veteran’s psychotic depression, major depressive disorder with psychotic features, were caused by PTSD and should be considered an additional challenge. Finally, the Board notes that the October 2017 VA examiner noted that it was not possible to differentiate which symptoms were attributable to the Veteran’s diagnosis of PTSD by history and cannabis use disorder. Therefore, given that it appears that the Veteran's other psychiatric symptoms overlap his PTSD symptoms and would be difficult to distinguish between these symptoms, in light of Mittleider, the Board will consider all of the Veteran's psychiatric symptoms as related to his service-connected PTSD with alcohol abuse. See Mittleider, supra. After a review of the evidence, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s service-connected psychiatric disorder have more nearly approximated the criteria for a 100 percent rating for the entire period on appeal. The August 2014 private DBQ indicated that the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control. The September 2014 VA examiner noted that the Veteran’s symptoms included depressed mood, suspiciousness, chronic sleep impairment, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, and grossly inappropriate behavior. The examiner noted that the Veteran was socially isolated, he had been arrested for domestic violence six months ago and the Veteran drank excessive alcohol every day. October 2014 VA treatment records reflect that the Veteran’s treatment provider recommended that the Veteran be hospitalized due to issues with rage, access to guns, and the need for medication. The Veteran and his mother declined and stated that he did not need hospitalization. The mother stated that she would be responsible for his safety and would bring him back if he needed further care. A VA treatment provider noted that the Veteran had reported two prior suicide attempts; once in 2011, when the Veteran drove his vehicle into a pond and was rescued, and the second time in 2012, when the Veteran held a gun to his head while drinking, but changed his mind about harming himself. In December 2014, the Veteran requested that his mother be named as manager of his VA benefits. See also December 2014 Third Party Correspondence. January 2015 VA treatment records reflect that the Veteran was hospitalized for four days. A VA treatment mental health interdisciplinary plan of care indicated that the Veteran had depressive symptoms, which were evidenced by poor sleep, poor appetite, weight loss, withdrawal and isolation, suicidal ideation, depressed mood, psychotic features (paranoia, delusional ideation); psychotic symptoms, which were evidenced by auditory hallucinations, visual hallucinations, non-compliance with treatment plan; PTSD symptoms, which were evidenced by recurrent intrusive thoughts of traumatic experience, irritability, and social isolation; at risk for injury - suicidal ideation, which were evidenced by thoughts of harming self; anxiety symptoms, which were evidenced by increased tension, feelings of panics, feelings of uncertainty, and suicidal thoughts. The Veteran also reported that he had command auditory hallucinations, which had ordered him to drive off the road into a ditch about years ago. The Veteran reported that he continued to have suicidal ideation and auditory hallucinations. The treatment provider that urine drug screen (UDS) and blood alcohol content (BAC) were negative on admission. The Veteran was also placed on the high risk for suicide list. See also October 2015 and November 2015 VA treatment records which reflect reports of suicidal ideation and auditory hallucinations. In February 2015, the Veteran’s girlfriend stated that the Veteran was not really interested in doing anything except he would watch television; he did not like to be around others as much anymore; he was very forgetful; and he did not handle change very well. The March 2015 SSA examiner noted that the Veteran’s intellectual skills were poor, he had poor effort and motivation, he rambled endlessly when asked questions, and it was very hard for him to focus. The examiner noted that the Veteran had neurologic findings that were consistent with depression and anxiety. The examiner also noted that the Veteran had extensive psychiatric issues, and he reported that he had attempted suicide several times. The examiner opined that the Veteran was a very mentally fragile and unstable patient that was actively being followed by the local VA under their mental health services. The April 2015 SSA examiner noted that the symptoms of the Veteran’s chronic PTSD included significant diminished interest in activities, a tendency to be isolative, a tendency to feel estranged from others, sleep disturbance, difficulty concentrating, irritability, overly vigilant and easily startled. The symptoms of the Veteran’s recurrent moderate major depressive disorder included sadness on most days, a diminished interest in activities, poor appetite, difficulty sleeping, low energy, fatigue, poor concentration, guilt, and periodic suicidal ideation. The symptoms of the Veteran’s psychotic disorder NOS included auditory hallucinations, in which the Veteran heard “voices” that would tell him to hurt himself. The Veteran reported that he began experiencing the hallucinations in 2013, and that the frequency of the hallucinations decreased since he began taking a medication in early 2015. The examiner noted that the Veteran’s recent memory was poor and his judgment was impaired. The examiner noted that the Veteran was also moderately impaired in his ability to understand, remember and carry out instructions. The examiner opined that the Veteran would require assistance in handling any awarded funds. In May 2015 SSA determined that the Veteran was eligible for disability benefits because he was not capable to work due to his anxiety related disorders and his affective mood disorders from October 2014. The February 2016 VA examiner opined that the Veteran had total occupational and social impairment. The examiner noted that since the Veteran’s VA examination in September 2014, the Veteran had experienced relational conflict with his girlfriend, infrequent contact with his son, psychiatric admission, and perhaps three suicide attempts. In addition, the examiner noted that the Veteran’s exhibited an odd demeanor during the present interview. The examiner opined that the Veteran’s psychiatric and behavioral status was significantly more severe than it was in the past. The examiner noted that the Veteran’s symptoms included anxiety, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. May 2017 VA treatment records reflect that the Veteran was placed back on the suicide high risk list. The Veteran called to report that he had been having suicidal and homicidal thoughts with a plan and intent. The Veteran reported that he had guns, which made him feel safe. He also reported that he had been arguing with his spouse all day. His spouse refused to speak with the treatment provider, and the treatment provider was unable to continue the conversation with the Veteran, and called 911 to initiate a rescue. The October 2017 VA examiner noted that the Veteran was no longer living with his girlfriend. He sometimes lived with his mother, and he did not see his son very often. The Veteran also reported that his cousin had died in June or July 2017. The examiner noted that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. The Veteran reported auditory hallucinations when upset or stressed and when he was alone. The examiner noted that the Veteran underwent a urine drug screen (UDS), which tested positive for cannabis. The examiner opined that because cannabis use could worsen symptoms of mental conditions and may cause hallucinations such as the Veteran reported, the examiner could not evaluate the Veteran’s symptoms or the current level of the Veteran’s psychiatric condition until he had been documented clean of cannabis or other drugs for several months. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of PTSD with alcohol abuse have more nearly approximated the criteria for a 100 percent rating. Throughout the period on appeal, the symptoms of the Veteran’s PTSD with alcohol abuse were manifested primarily by ongoing symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, impaired judgment, disturbances of mood and motivation, suicidal ideation, obsessional rituals which interfere with routine activities, panic attacks that occurred weekly or less often, impaired impulse control, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, auditory hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and negative thoughts of harm to self and others. The Board finds that the Veteran’s symptomatology throughout the period on appeal has been consistent with and more nearly approximated total occupational and social impairment, the criteria for a 100 percent rating. Although the medical evidence does not show symptomatology such as gross impairment in thought processes or communication; persistent delusions or hallucinations; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name, the symptoms noted in the rating schedule 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 disability rating. Mauerhan, supra. The Board notes that although the Veteran has lived with his mother and his girlfriend at various times throughout the period on appeal, the Board notes that the Veteran’s medical records including VA treatment records and VA examinations indicate that the Veteran has engaged in grossly inappropriate behavior towards his girlfriend and his mother. Thus, even though not all the listed symptoms compatible with a 100 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 100 percent rating are demonstrated throughout the period on appeal. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) VA will grant a TDIU when the service connected disabilities are rated less than total, but the Veteran is precluded, by reason of his service connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As a TDIU can only be awarded in cases where the schedular rating is less than total, there is no basis for awarding a TDIU. 38 C.F.R. § 4.16(a). The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. Here, the Veteran’s service-connected PTSD with alcohol abuse is rated at a 100 percent schedular disability rating, and the Veteran’s other service-connected disability includes lumbosacral sprain, which is rated at 10 percent from December 30, 2011 and 20 percent from June 29, 2017, which does not meet the statutory requirements to form the basis for an award of special monthly compensation. Thus, to also award a separate TDIU rating in addition to the schedular 100 percent rating based on the Veteran’s service-connected PTSD with alcohol abuse would result in duplicate counting of the disability. For these reasons, the award of the total schedular rating effectively creates a situation where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. In such an instance, dismissal of the TDIU issue is appropriate. See 38 U.S.C. § 7105(d). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel