Citation Nr: 18151588 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 17-16 360 DATE: November 19, 2018 ORDER An initial rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating for individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran’s service-connected PTSD has been manifested by occupational and social impairment with deficiencies in most areas, and not by total occupational and social impairment. 2. The Veteran’s service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 105(a), 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from May 1981 to May 1984. As service connection, an initial rating, and an effective date have been assigned for the issue of entitlement to higher initial ratings for PTSD, the notice requirements of 38 U.S.C. § 5103(a) have been met. Next, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant VA examinations, VA medical opinions, and a hearing before the Board. 38 U.S.C. §§ 5103, 5103A. There is no objective or subjective evidence indicating that there has been a material change in the severity of the Veteran’s service-connected PTSD on appeal since he was last examined in July 2017. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95; 60 Fed. Reg. 43186 (1995). There is no evidence that additional records have yet to be requested. In sum, there is no evidence of any VA error in notifying or assisting him that reasonable affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). 1. Entitlement to an initial rating in excess of 30 percent prior to July 17, 2017 and in excess of 50 percent thereafter for PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. 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). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for higher initial evaluations, the Board has considered all evidence of severity since the effective date for the award of service connection in on May 23, 2016. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran filed his initial claim requesting service connection for PTSD in September 2011, and it was denied on the merits in an August 2012 VA rating decision. On May 23, 2016, the Veteran requested to reopen his previously denied claim. In an August 2016 VA rating decision, the claim was reopened and service connection for PTSD was granted. The Veteran’s PTSD was rated at 30 percent disabling for the entire appeal period from May 23, 2016. 38 C.F.R. § 4.130, Diagnostic Code 9411. In an August 2017 Supplemental Statement of the Case (SSOC), 50 percent disability rating was assigned, effective from July 17, 2017. Id. Since the 30 and 50 percent disability ratings are not the maximum ratings available prior to July 17, 2017 or thereafter, the issue has been returned to the Board and characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the Board considers whether an initial rating in excess of 30 percent prior to July 17, 2017 and in excess of 70 percent thereafter for PTSD is warranted in this case. Diagnostic Code 9411 provides that PTSD is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. 38 C.F.R. § 4.130. A 30 percent rating is assigned for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The nomenclature employed in the portion of VA’s rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes VA implemented usage of the DSM-5, effective August 4, 2014. As this case was initially certified to the Board in October 2017, the DSM-5 is for application in this case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Review of the evidentiary record from May 23, 2016 documents the following symptomatology for the Veteran’s psychiatric disability. The Veteran was seen for treatment at a private mental health facility in April 2016. Upon mental status examination, the Veteran’s attention and concentration were found to be poor, he endorsed active suicidal thoughts, paranoia and delusions were presents, and the Veteran endorsed auditory and visual hallucinations at night. The examiner concluded the Veteran suffers from PTSD with high levels of anxiety and depression. The examiner noted the Veteran engages in defense mechanisms in the form of avoidance, isolation, and withdraw. The Veteran was afforded a VA examination in August 2016. Upon mental status examination the Veteran was found to have no formal thought disorder, reports of some vigilance, some flashbacks, and some discomfort in closed spaces. The Veteran reported some anxiety in crowds and difficulties sleeping. The examiner found the Veteran exhibited symptoms of a depressed mood, anxiety, suspiciousness, and a chronic sleep impairment. Suicidal and homicidal ideations were absent. The examiner opined the Veteran’s PTSD was consistent with an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was afforded a VA examination in July 2017. The examiner found the Veteran exhibited symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner noted symptoms of anxiety, nightmares, and hypervigilance were attributable to PTSD, while the symptoms of depression, sleep disturbance, memory impairment, and avoidance of social interaction is due to both the Veteran’s alcohol use disorder and his PTSD. The examiner opined the Veteran’s PTSD was consistent with an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that the aforementioned evidence demonstrates an occupational and social impairment with deficiencies in most areas for the entire period at issue. As noted above, the April 2016 private treatment records as well as the July 2017 VA examination show that the Veteran endorsed suicidal thoughts. Additionally, the treatment notes and VA examinations support that the Veteran had an inability to adapt to stressful circumstances, such as maintaining employment or maintaining effective relationships. Such symptomatology is consistent with a higher 70 percent rating. Accordingly, the Board finds that a 70 percent rating is warranted for the entire initial appeal period from May 23, 2016. With regard to whether an initial rating in excess of 70 percent is warranted at any time during the entire appeal period since May 23, 2016, the Board finds that the examinations and treatment records do not indicate that the Veteran’s symptoms rise to the severity, frequency, and duration required of a 100 percent rating. For example, at no point in the claims was evidence found of persistent danger of hurting self or others, intermittent ability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran consistently appeared appropriately groomed and demonstrated no issues with activities of daily living or more than mild memory loss. The records indicated he maintained good insight and judgment and do not demonstrate the total occupational and social impairment required for a 100 percent disability rating. The Board is aware that the symptoms listed under the next-higher rating of 100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, entitlement to such evaluations require sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board acknowledges the Veteran’s reported; however, as explained above, the record does not show such symptomatology was of the frequency, severity, or duration to result in total occupational and social impairment. Nevertheless, the Board has considered the next-higher rating for the entire initial appeal period but finds that it is rated appropriately at 70 percent. The signs and symptoms manifested are contemplated by the currently assigned rating of 70 percent as they do not manifest with the severity, frequency, or duration required for the 100 percent rating. In sum, the Board finds that an initial rating in excess of 70 percent for PTSD is not warranted at any time since May 23, 2016 in this case. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board considers the Veteran’s reported history of symptomatology related to the service-connected PTSD. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for the maximum rating for his PTSD have been met. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered the possibility of staged ratings and finds that the scheduler rating of 70 percent for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. 2. Entitlement to a TDIU The Board notes that the Veteran’s private treatment records include the Veteran’s statement that he has difficulty holding a job due to psychiatric and alcohol related problems. See, e.g., April 2016 treatment record. Therefore, the Board finds that the record raises a claim for TDIU in connection with the claim on appeal discussed above. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for TDIU when the appellant claims his work is restricted due to a service-connected disability). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence shows that the Veteran is only service connected for PTSD, which is rated as 70 percent disabling from May 23, 2016 (as granted in this decision discussed above). Therefore, as of May 23, 2016, the schedular percentage criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). Review of the record includes the following pertinent evidence. Private treatment notes from April 2016 indicate the Veteran “gets by” financially by cutting grass part time. He further indicated that he has difficulty holding a job due to alcohol, which was the cause of losing his last full-time employment. Further, at the July 2017 VA examination the Veteran stated he was last employed approximately one year ago. Thus, the Board finds the Veteran has not been substantially gainfully employed since he was service connected for PTSD in May 2016. In this case, the evidence indicates that the Veteran has had difficulty maintaining a job based on his PTSD and alcohol abuse symptoms. Although the law provides that no compensation shall be paid if the disability for which service connection is sought is a result of the Veteran’s own willful misconduct or abuse of alcohol or drugs, the statute does not preclude compensation for an alcohol abuse disability secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Instead, the law precludes compensation for “primary” alcohol abuse disabilities and for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Id. at 1376. “Primary” means an alcohol abuse disability arising during service from voluntary and willful drinking to excess. Id; see also 38 U.S.C. § 105(a). To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions 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). (Continued on the next page)   In this case, the evidence of record demonstrates that both VA examiners have found the Veteran’s alcohol abuse is secondary to his service-connected PTSD. See August 2016 and July 2017 VA examinations. Further, the July 2017 VA examiner opined it was not possible to differentiate what portion of the occupational impairment was due to each mental disorder. Therefore, based on the evidence above and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. Accordingly, the issue of entitlement to a TDIU is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.16. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel