Citation Nr: 18148225 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 07-05 982 DATE: November 8, 2018 ORDER Entitlement to an initial rating of 50 percent, and no higher, from December 4, 2002 to July 29, 2008, a 70 percent rating, and no higher, from July 30, 2008 through January 18, 2011, and no later, and a 50 percent rating, and no higher, from January 19, 2011, for PTSD with alcohol abuse is granted. FINDING OF FACT 1. The Veteran worked full time with no significant absence due to his acquired psychiatric disability until his retirement in August 2006. 2. During the entirety of the rating period on appeal, the Veteran has been married to the same spouse, maintained a relationship with children, and engaged in social activities, to include with other people. 3. Prior to July 30, 2008, the Veteran’s PTSD with alcohol abuse was manifested by no more than occupational and social impairment with reduced reliability and productivity. 4. Between July 30, 2008 through January 18, 2011, the Veteran’s PTSD with alcohol abuse was manifested by no more than occupational and social impairment in most areas, without total occupational and social impairment. 5. From January 19, 2011, the Veteran’s PTSD with alcohol abuse was manifested by no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, and no higher, from December 4, 2002 to July 29, 2008, a 70 percent rating, and no higher, from July 30, 2008 through January 18, 2011, and no later, and a 50 percent rating, and no higher, from January 19, 2011, for PTSD with alcohol abuse have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1952 to March 1955. Historically, the Veteran filed a claim for PTSD in December 2002; in August 2003, he submitted additional correspondence with regard to his claim for service connection. In a September 2003 rating decision, the RO granted service connection for PTSD, rated as 30 percent disabling, and assigned an effective date of December 4, 2002. In 2004, the Veteran disagreed with the rating (April 2004), the RO denied an increase (July 2004), and the Veteran again disagreed (November 2004). In February 2006, the RO granted a 50 percent rating effective from November 30, 2004; however, in an April 2012 Board decision, the Board found that November 2004 Veteran’s correspondence was a notice of disagreement to the July 2004 rating. In a March 2016 rating decision, the RO granted an effective date of a 50 percent rating back to August 14, 2003, the date it considered the Veteran to have filed a claim for an increase. The Board notes however, that August 14, 2003, cannot serve as a date of an increased rating as the Veteran had not yet been granted service connection when he submitted the August 14, 2003 correspondence. The Board also notes that the March 2016 rating code-sheet and subsequent code-sheets do not reflect a rating for PTSD prior to August 2003 despite the September 2003 grant of service connection at a 30 percent rating from December 2002. The Board finds that a 50 percent evaluation is warranted from the date of the Veteran’s initial claim, which is December 4, 2002. Thus, the Board has considered the issue on appeal to be a claim for an increased initial evaluation (i.e. from December 4, 2002). This matter was most recently before the Board in July 2017, when the Board denied the Veteran’s claim. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a July 2018 Order, the Court vacated the Board’s denial and vacated the matter pursuant to a Joint Motion for Remand (JMR) which found that the Board failed to adequately address a July 2008 VA examination report. [This issue of entitlement to a total rating based on individual unemployability (TDIU) based on multiple service-connected disabilities was most recently the subject of a February 2018 Board remand. As the requested remand action has not yet been completed and the issue has not been recertified to the Board, the TDIU issue will be addressed in a later decision.] Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Rating Acquired Psychiatric Disability Acquired psychiatric disabilities are rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating - 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. 70 percent - 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). 50 percent -- 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. 30 percent-- 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, and mild memory loss (such as forgetting names, directions, recent events). 10 percent -- 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 continuous medication. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (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. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Legal Analysis Additional reference to the Veteran’s acquired psychiatric disability is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. From December 2002 to July 29, 2008 Initially, the Board notes that the Veteran was employed on a full-time basis without significant lost work time from December 2002 through August 2006, and he has been married for the entirety of the period on appeal. A January 2003 VA social worker record reflects that the Veteran reported chronic sleep disturbance, crying spells, depression, hypervigilance, intrusive thoughts. He reported that he finds his employment working with other veterans to be therapeutic and helps him to not focus on himself. He was interested in medication evaluation. An August 2003 VA examination report reflects the opinion of the clinician that the Veteran’s functional status was “fairly good” and that he had been able to function at his job for many years. Examination showed no impairment of thought processing or communications. The Veteran denied delusions or hallucinatory activity, current suicidal or homicidal thoughts, ideas, or plans. He had the ability to maintain his personal hygiene and perform other basic activities of daily living. He was oriented as to person, place, and time. He reported memory problems, but the examination showed basic memory to be intact. There was no obsessive or ritualistic behavior observed or noted. Rate and flow of speech was normal. The Veteran denied panic attacks and phobias. He appeared blunted in affect, depressed and anxious. Impulse controls were “fairly good” and he had a tendency to become verbal only when having a problem in this area of concern. The Veteran reported multiple sleep interruptions, and it was noted that he was very paranoid which, along with other findings, was suggestive of a personality disorder. The examination report also reflects that the Veteran golfed for leisure activity. The examiner found that the Veteran exhibited moderate symptoms including a depressed mood, insomnia, and difficulty in social and occupational functioning and interpersonal relationships. In a March 2004 statement, the Veteran indicated that his PTSD had increased in severity. A June 2004 VA examination report reflects that he had been attending group therapy for PTSD since 2003. He continued to work full time as a veterans’ counselor and had been married to his current wife for 23 years, whom he described as a stabilizing factor. He admitted to ongoing alcohol abuse as self-medication for his PTSD. The Veteran reported symptoms including nightmares 2-3 times per week, avoidance, emotional numbness, sleep deprivation, anger, irritability, and hypervigilance. He reported that he had lost no time from work due to PTSD because he was philosophically work-oriented. His leisure pursuits included gardening and golfing; his social relationships were limited to friends with whom he golfed and drank. There was no assaultive behavior or suicide ideation in recent years. Examination showed that the Veteran was appropriately groomed and fully oriented. He denied any suicidal or homicidal ideation and/or hallucinatory experiences. There was no evidence of delusional thinking. Thought processes were logical and goal directed. Insight and judgement appeared to be intact. Memory in all spheres was intact and overall intellectual functioning was in the average to high average range. The Veteran was diagnosed with moderate PTSD with alcohol abuse. A March/April 2005 VA examination report reflects that the Veteran reported that he continued to work full time, explaining that if he did not keep himself busy his PTSD symptoms become worse. He had lost no time from work in the last 12 months but he reported that he had social impairment; he did play golf but otherwise was largely alone. He indicated that he felt fatigued and depressed and was crying more frequently. Although he used alcohol over the years to self-medicate himself, he did not drink much anymore because he could not mix it with his medications. He had difficulty getting close to the children from his prior marriages. He indicated that he had been married to his current spouse for 27 years and that she had been his anchor; she knew how to handle his temper, moods and anxiety and she was very patient with him. His relationship with his wife was good and his relationship with his grandchildren was better than with his own children. There was no violence or assaultive behavior, and the Veteran reported that when he gets irritable and angry, he tries to walk away from people before he loses his temper. He denied suicide attempts in the last year. It was noted that performance in his employment seemed to be good as did responsibilities of self-care and family role functioning. Social and interpersonal relationships were noted to be minimal. On examination in 2005, there was no impairment of thought process and the Veteran communicated well. He denied delusions or hallucinations and made good eye contact. There was no inappropriate behavior and he did not have suicidal or homicidal thoughts, ideations, plans, or intent. He was able to maintain good personal hygiene. He was very tense and anxious during the interview but was oriented to person, place, and time. His memory was intact for both short-term and long-term memory. There is no obsessive or ritualistic behavior. His speech was relevant and logical with no obscure speech pattern. There were no panic attacks. The Veteran reported nightmares and feeling guilty and severely depressed and moderately anxious. The Veteran reported getting irritable but did not have any impulse control problems. It was noted that the Veteran spent “all day long” answering telephone calls at his employment; thus, the Board can reasonably assume that the Veteran communicated with various people on a daily basis and provided them with information and/or took information from them. The evidence reflects that the Veteran retired from his employment in August 2006. In an October 2006 statement, the Veteran indicated that he had retired as a result of his physical service-connected disabilities; he indicated that due to hearing impairment, it had become increasingly difficult to hear phone conversations with individuals who had soft or low speech volume, and that sitting for long periods of time affected his left hip, lower back, and knees which interfered with his work efficiency. VA medical records reflect that the Veteran had chronic sleep complaints, but also that he reported that he and his wife get along fine, he is able to function and concentrate at work, answers phone calls continuously at work (May 2003), he was getting along better with his wife and more calm in the mornings with medication (June 2003), his depression was a 4/10 (December 2003), he was attending a support group at which he was active, attentive, and participatory (August, September, November 2004, March, April, July 2005), he was getting up to 4 hours a night of ‘good” sleep with medication, and could easily go back to sleep after using the bathroom , that his depression was a 5/10 , that his judgment and insight were not impaired, that he had no memories problems noted, that he was oriented, (December 2005), that he reported a lot of tension and sleep disturbances, but that he was working full time and found that his job was not stressful to him (March 2006), that he joined a gym (April 2006), and that he reported that with regard to his PTSD, he was doing “fair”, he was not depressed, and had fair insight, fair judgment, and grossly intact cognition (October 2007). In sum, the evidence supports a finding of a rating of 50 percent from December 4, 2002 to August 13, 2003, but is against a finding that a rating in excess of 50 percent is warranted at any time during this period. A higher rating would be warranted if the Veteran had occupational and social impairment, with deficiencies in most areas, or more severe symptoms. However, the evidence as a whole and noted above is against such a finding. Notably, the Veteran was able to work without significant impairment by his PTSD until he chose to retire in 2006 due to physical disabilities, and he has been able to maintain successful relationships with his family, including his wife and grandchildren, and friends. The Board has considered the examples in the 70 percent rating criteria but finds that the preponderance of the evidence is against a finding that his symptoms more nearly approximate those criteria. Further, he does not have other symptoms of similar severity, frequency and duration. From July 30, 2008 through January 18, 2011 The Board finds, for the reasons noted below, that the Veteran is entitled to a 70 percent rating, and no higher, from July 30, 2008 through January 18, 2011. A July 2008 VA examination report reflects that the Veteran reported a depressed mood, frequent crying, nightmares and sleep problems as well as feeling easily irritated, poor emotional control, and hypervigilance. He reported that he continued to participate in group therapy and got comfort from being with other veterans. The Veteran reported that he had retired after thirty years as a federal employee because “work wasn’t fun anymore.” He had become increasingly frustrated and less patient with changed that had been occurring. The Veteran reported that he had been married to his current spouse since 1981, and that they had intense arguments at times due to his anger problems. He had seven biological children and two step children whom he described as “great” and he talked about them proudly. He indicated that he had good relationships with all of them. The appellant also reported having a small group of friends with whom he golfs and has known for over 20 years. He considered himself to be close with three of them. He pursued leisure activities such as golfing on weekends with friends and working in his yard. The appellant reported a recent road rage incident in which he was prepared to fight another motorist, but the other driver drove away. On examination in 2008, the Veteran’s thought processes and communication were logical and goal directed. There were no delusions or hallucinations nor was there evidence of psychotic thinking. The Veteran reported that he had had no suicidal thoughts in past few years. He was fully oriented. He was able to maintain minimal personal hygiene and other basic activities of daily living. The Veteran reported short term memory problems, however the examiner found that his long-term memory was intact. The Veteran reported frequently checking his door locks and not remembering that he just checked them. He indicated, however, that this behavior did not interfere with routine activities. The Veteran reported feeling depressed three to four times weekly, being hypervigilant, easily startled, and having sleep impairment. He denied panic attacks. He reported frequent crying spells, feelings of guilt, intrusive thoughts of war experiences, feeling easily irritated, and having poor emotional control. His symptoms occurred daily and were severe enough to interfere with social functioning. The examiner noted that the Veteran’s PTSD signs and symptoms had resulted in deficiencies in most areas in that he reported retiring from his job due to decreased ability to cope with changes that were occurring in the workplace and that his marital relationship is impacted by his poor anger control and tendency to overreact to situations. (The Board notes that this explanation of the Veteran’s reason for retirement is contrary to his earlier reports that he left work due to physical disabilities, and that his work actually kept his PTSD symptoms from getting worse.) The clinician also noted that the Veteran had some impairment as he becomes provoked easily and overreacts to the point of recently almost becoming involved in a physical altercation with a motorist. The 2008 clinician’s findings support a 70 percent disability evaluation. The exact onset of the Veteran’s 70 percent level of disability cannot be determined with any certainty prior to the July 30, 2008 examination. The earliest that that it can be factually ascertained that he met the criteria for a 70 percent rating is the date he was examined on July 30, 2008. The Board finds that a rating in excess of 70 percent is not warranted as the preponderance of the evidence is against a finding of total occupational and social impairment. Notably the Veteran was still married, had a good relationship with his family, and continued to golf with a league, which does not support a finding of total social impairment. The Board has also considered the symptoms listed as examples in the rating criteria for a 100 percent evaluation and finds that the preponderance of the evidence is against a finding that his disability more nearly approximates the 100 percent rating criteria. Further, he does not have other symptoms of similar severity, frequency, or duration. Records also reflect that the Veteran flew to out of state to attend a family reunion (August 2008), had good insight and judgment, and was cognitively grossly intact without suicide or homicide ideation (October 2008), that he had stopped taking his anti-depression medication due to the stigma, but wanted to return because he felt it had helped (December 2008). These records do not reflect that a rating in excess of 70 percent is warranted. In July 2010, the Veteran testified at a hearing at the RO at which he described his PTSD symptoms. He testified that he is unable to sleep, felt hypervigilant, and had an incident of road rage. An August 2010 VA examination report reflects that the Veteran reported that he was often short-tempered which negatively affected his relationship with his wife. He played golf in a local league on the weekends which was his only social outlet. On examination, there were no hallucinations, no inappropriate behavior, and no obsessive or ritualistic behavior other than checking his door locks. The Veteran reported panic attacks once a month for 15 minutes, usually when he felt threatened. He denied homicidal or suicidal thoughts. The Veteran’s remote memory was mildly impaired and his recent memory was moderately impaired. Other symptoms included avoidance, difficulty with sleep, irritability, and difficulty concentrating. The examiner noted that the Veteran had learned to manage his anger when he becomes frustrated. The Veteran reported that he did not have friends that visit or that he visits, that he is a loner and keeps to himself, other than his weekly golf and occasionally going out to eat with his wife. The report is against a finding of total occupational and social impairment. From January 19, 2011 The Board finds that a 50 percent rating, and no higher is warranted from January 19, 2011. A January 2011 VA examination report reflects that the Veteran reported continued attendance at group therapy and compliance with his medication. The Veteran reported continued irritability, sleep impairment and crying spells. He denied suicidal thoughts. He indicated that he had a supportive relationship with his wife of 30 years. He acknowledged occasional arguments but denied any increase in problems with communication that would impair their relationship. The Veteran had seven children and maintained communication with them as well. He described himself as a loner but goes golfing weekly with the same group of men that he has known for twenty years. He continued to enjoy gardening. On examination, the Veteran was fully oriented and his thought content was normal. He had good insight. He reported checking the perimeter of his house at least 4 times a night which was annoying to him. He also reported panic attacks 4-5 times a year. The Veteran’s recent and immediate memory was mildly impaired. His remote memory was normal. He exhibited minimum personal hygiene and had no problem with activities of daily living. The examiner noted that the Veteran had reported difficulty with social functioning, avoiding any outings or events in public which could have stimuli reminding him of his trauma. He also reported having less friends and social supports because of his unwillingness to go on social outings and his increased irritability. The examiner found that the Veteran had reduced reliability and productivity due to PTSD, but did not have total occupational and social impairment, and did not have deficiencies in judgment, thinking, family relations, work, mood, or school. This equates with a 50 percent rating. VA records also reflect that the Veteran continued to golf a few times a week (February 2014, November 2014, July 2015), is very active for his age (February 2014), and reported moderate depression of 5/10 and anxiety of 3/10, anger, irritability, and mood swings, sleep of 2-4 hours a night but no nightmares (October 2016). A January 2017 VA examination report with addendum reflects that the Veteran continued to report several symptoms to include negative emotional state, markedly diminished interest or participating in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior, exaggerated startled response, mild memory loss, problems with concentration, and sleep disturbances. The Veteran was oriented, and there was no evidence of bizarre suicidal/homicidal thinking, obsessions, compulsions, paranoia, delusions, or hallucinations. His speech, eye contact, posturing, and psychomotor activity were all within normal limits. The Veteran’s Beck Anxiety Inventory reflects a screening score indicative of a mild level of anxiety. His depression testing revealed a moderate level of depression. The examiner acknowledged the Veteran’s July 2008 VA examination results but found that it was of little relevance to his current functioning. The examiner opined that the Veteran’s PTSD symptoms are best summarized as causing 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 conversations; such a rating equates with a 30 percent rating. The Board will not disturb the Veteran’s current 50 percent rating but finds the preponderance of the evidence is against a 70 percent or higher rating for this period. Conclusion The evidence as a whole reflects that the only period on appeal for which a rating in excess of 50 percent is warranted is from July 30, 2008 to January 18, 2011. In giving the benefit of the doubt to the Veteran, a 70 percent rating is warranted for that time period based on the July 2008 VA examination report; however, earlier VA examination reports and later VA examination reports do not support this evaluation. In essence, of the six VA examination reports, only one supports a 70 percent rating, whereas, the remaining support a 30 percent or 50 percent rating. Clinical records also do not support a 70 percent or 100 percent rating. While the Veteran has consistently reported symptoms such as sleep impairment of varying degrees, depression and anxiety of varying degrees, diminished social life, and hypervigilance, he has also consistently maintained a fair to good relationship with his family, and continued to socialize in a weekly golf league. He has not had chronic suicide ideation or homicide 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; spatial disorientation; neglect of personal appearance and hygiene; 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.   Nor has he had symptoms of equal or more intense severity. Thus, a 50 percent rating prior to July 30, 2008, a 70 percent rating from July 30, 2008 through January 18, 2011, and a 50 percent rating from January 19, 2011, but no higher, is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard