Citation Nr: 18142903 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-23 259 DATE: October 17, 2018 ORDER Entitlement to service connection for depressive disorder is denied. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse disorder is denied. FINDINGS OF FACT 1. The most probative evidence establishes that the Veteran does not meet the diagnostic criteria for a depressive disorder or other psychiatric disability other than service-connected PTSD with alcohol abuse. His depression is a symptom of his service-connected PTSD with alcohol abuse disorder and those symptoms have been contemplated in assigning the current disability rating. 2. The Veteran’s PTSD with alcohol abuse disorder is manifested by symptoms such as: suicidal ideations; depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. 3. The Veteran’s PTSD with alcohol abuse disorder did not manifest in symptoms such 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 which produce total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability (other than service-connected PTSD with alcohol abuse disorder), including depression, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 70 percent for PTSD with alcohol abuse disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1977 to September 1984 in the United States Navy. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2015 rating decision, the RO granted service connection for PTSD and assigned an initial 50 percent rating, effective December 5, 2014; denied service connection for depression; and deferred a decision on the claim of service connection for alcohol abuse disorder. A March 2016 rating decision characterized the Veteran’s service-connected psychiatric disorder as PTSD with alcohol abuse disorder and increased the rating for that disability to 70 percent, effective December 5, 2014. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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 picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Rating Formula for Mental Disorders The Veteran’s service-connected psychiatric disability, PTSD with alcohol abuse disorder, is rated under the criteria contained in the General Rating Formula for Mental Disorders. Under those criteria, a 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or 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. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates 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 symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Court) held 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 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. at 118. The Federal Circuit indicated that “[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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). FACTUAL BACKGROUND In August 2015, the Veteran stated that he had been suffering from depression since his “stressor event on July 27, 1978.” His mother also submitted a statement stating that she too believed her son was suffering from depression. The Veteran was afforded a VA medical examination in August 2015. After examining the Veteran and reviewing the record, the VA examiner diagnosed the Veteran as having PTSD and moderate alcohol use disorder. He noted that the Veteran’s PTSD with alcohol use disorder was manifested by symptoms which included a depressed mood, but did not diagnose depression as a separate psychiatric disability. The examiner also noted that the Veteran did not plan suicide despite chronic suicidal ideation, and opined that the Veteran was not to be at imminent risk for suicide or homicide. The examiner also noted that the Veteran was appropriate dressed and groomed, had meticulously obtained relevant records, was cooperative, and had congruent affect. There was no mention of hallucinations, delusions, or grossly inappropriate behavior from the Veteran. He was also able to recite his work history, had no problems remembering his family including his daughter in Peru, and denied ever developing a plan for suicide. The Veteran reported that he had been married and divorced twice due to depression and alcohol. He lived with his mother and had friends from his prior city, but had no friends in his current city. He reported that he had had multiple jobs, had worked steadily from 1997 to 2000. His last five years he had had good job performance, although he had left his job in 2010 because he felt burnt out and wanted to travel. The examiner indicated that the best summary of the Veteran’s level of social and occupational impairment with regard to all mental diagnoses was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. In April 2016, the Veteran submitted a statement claiming that he engages in grossly inappropriate behavior on a regular basis, that he frequently becomes very disoriented to time and place, cannot differentiate nightmares from hallucinations, and that he is afraid that he may hurt another person or himself. The Veteran’s mother also attached her statement reporting that the Veteran’s depression worsened, that he was using abusive language and was hallucinating regularly. Although signed on April 5, 2016, the statements were not received by the RO until May 3, 2016. The Veteran was afforded another VA examination on April 25, 2016. The examiner diagnosed PTSD with alcohol use disorder. During the examination, the Veteran again denied ever trying to harm himself, denied auditory or visual hallucinations outside the context of waking rom an intense dream state. The examiner noted that the Veteran was well-groomed, casually dressed, alert and fully oriented to place and time. The examiner opined that the Veteran’s judgment was moderately impaired based on his continued alcohol use, and found the Veteran capable of managing his financial affairs. Again, the examiner noted that the Veteran had symptoms of depressed mood, but did not make a diagnosis of depression. Rather, he determined that the Veteran met the diagnostic criteria for diagnoses of PTSD and alcohol abuse disorder. The Veteran reported that he had been homeless as of three days prior, although he visits his mother’s house to take showers. He indicated that he lived in a spare car in the garage of his mother’s home. The Veteran reported that he was in a long distance romantic relationship with a woman with whom he had had a child. He denied having any other friends or social support. He indicated that he had not worked since 2010, when he elected to quit his job in the context of meeting work experiences. He indicated that he had applied for multiple jobs since 2014 but had not heard any response. He visited the library regularly to update his resume. He indicated that he believed his psychiatric condition limited his ability to work. After examining the Veteran and reviewing the record, the examiner indicated that the best summary of the Veteran’s level of social and occupational impairment with regard to all mental diagnoses was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. 1. Entitlement to service connection for depressive disorder The Veteran contends that he has a depressive disorder caused by his traumatic events while in service. The most probative evidence establishes that the Veteran does not have a separately diagnosable psychiatric disability other than service-connected PTSD with alcohol abuse disorder. His depression is a symptom of his service-connected PTSD with alcohol abuse disorder. With regard to the Veteran’s symptoms of depression, the Board notes that such symptoms are contemplated in the rating criteria for PTSD with alcohol abuse disorder, currently rated at 70 percent. The Veteran’s symptoms of depression, as noted in the VA examinations, are part and parcel of his PTSD with alcohol abuse. To assign a separate rating for depression would result in prohibited pyramiding. See 38 C.F.R. § 4.14. Thus, service connection for a depressive disorder or a separate rating for depression is not warranted. 2. Entitlement to a rating in excess of 70 percent for PTSD with alcohol abuse disorder The Veteran contends that his PTSD with alcohol abuse disorder should be rated in excess of 70 percent. Based upon the evidence of record, as discussed above, the Board concludes that a rating in excess of 70 percent for PTSD with alcohol abuse disorder is not warranted as the Veteran’s symptoms do not more closely approximate the rating criteria for a 100 percent disability rating. See 38 C.F.R. § 4.130, DC 9411. Although the Veteran and his mother stated in April 2016 that he had some symptoms contemplated for a 100 percent rating, the April 2016 VA examiner did not observe any of them during the examination. In addition, the Veteran himself denied and contradicted his statements by telling the examiner that he did not experience auditory or visual hallucinations, and that he never attempted to harm himself. The examiner also added that the Veteran was fully oriented as to time and place, maintained at least minimal personal hygiene, and while displaying moderate impairment in judgment, was not in imminent danger to himself or others. The examination was also contemporaneous to the Veteran’s statements, less than a month since the Veteran’s statements. Similarly, the August 2015 examination also found no symptoms contemplated for a 100 percent rating. Moreover, as detailed above, the Veteran maintains a relationship with his mother as well as a long distance romantic relationship. Although the relationship with his mother is strained, it cannot be said that his psychiatric symptom have produced total occupational impairment. Moreover, although the Veteran is not currently working and believes that his psychiatric disability would make it difficult to work, the record shows that he quit his last job voluntarily and has been able to update and send his resume to several potential employers. In addition, both examinations referenced above reflect that although the Veteran’s psychiatric disability produces significant impairment, it was the judgment of the examiners that he was not totally occupationally impaired. For these reasons, the Board similarly concludes that a total rating based on individual unemployability is not warranted as the Veteran has not been shown to be incapable of securing or following a substantially gainful occupation as a result of his service-connected psychiatric disability. The sole fact that he is not working or has difficulty obtaining employment is not enough. Indeed, his 70 percent rating is, in itself, recognition that the impairment makes it difficult to obtain and keep employment. However, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. As such, the Board finds that the Veteran’s PTSD with alcohol abuse disorder symptomatology is appropriately compensated by the assigned 70 percent disability rating. While the Veteran has endorsed some symptomatology contemplated by the rating criteria for an increased rating, such as grossly inappropriate behavior, his symptoms as a whole are not of similar severity, frequency, and duration to those in rating criteria for 100 percent disability rating, nor has he shown to have total social and occupational impairment. See Vasquez-Claudio, 713 F.3d at 116. The Board has also fully considered the lay statements of record, which are competent insofar as they relate to observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, given the nature of the question at issue, the Board has assigned more probative value to the objective findings of the VA examiners.   As the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial rating in excess of 70 percent for PTSD with alcohol abuse disorder, there is no reasonable doubt to be resolved and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel