Citation Nr: 18155314 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-44 487 DATE: December 4, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, for other specified trauma- and stressor-related disorder with alcohol and stimulant use disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the entirety of the appeal period (excluding periods where temporary total ratings are already in place), the Veteran’s psychiatric disability has manifested in symptoms causing occupational and social impairment with deficiencies in most areas. Total social and occupational impairment is not shown by the record. CONCLUSION OF LAW The criteria for the assignment of an initial 70 percent rating, but no higher, for other specified trauma- and stressor-related disorder with alcohol and stimulant use disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty between January 1976 and November 1976. During the course of the appeal, the Veteran has asserted he has been unable to work due to the effects of his service-connected psychiatric disability. Under Rice v. Shinseki, entitlement to a TDIU is part and parcel of the increased initial rating claim. 22 Vet. App. 447 (2009). The issue is discussed in the Remand section below. Entitlement to an initial rating in excess of 30 percent for other specified trauma-and stressor-related disorder with alcohol and stimulant use disorder Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When two ratings are potentially applicable, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time. In other words, the evaluations may be staged. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The criteria for the 30 percent rating for anxiety disorder contemplate 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). 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent rating is warranted where there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability rating to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran filed his service-connection claim for a psychiatric disability on November 29, 2012. The AOJ awarded service connection, and assigned an initial 30 percent rating. Although the AOJ has since recognized two periods where a temporary total disability rating has been warranted based on hospitalization (from December 19, 2013 to April 30, 2014, and from June 23, 2014 to August 31, 2014), for all other times since the effective date of service connection, the Veteran’s psychiatric disability has been rated at 30 percent. The August 2016 Statement of the Case identified the Veteran’s date of claim as November 29, 2012, and the Board will consider whether a higher rating is warranted at any time from that date. The Board wishes to make clear that although VA examiners were able to distinguish symptoms between the Veteran’s trauma related disorder and his substance abuse disorder, his service-connected disability includes both conditions. As such, the Board will consider all mental health symptoms, to include all symptoms attributable to his service-connected substance abuse disability, in assessing the appropriate rating. For the reasons discussed below, although the severity of the Veteran’s disability has waxed and waned over the course of the appeal period, the evidence demonstrates that at worst, the Veteran’s disability manifested in occupational and social impairment with deficiencies in most areas such as work, family relations, judgment and mood. An October 2012 VA treatment record states that the Veteran was admitted for care due to his substance use disorder. The record indicated that the Veteran had significant feelings of guilt, worthlessness, and depression with suicidal ideation. In June 2013, the Veteran underwent a VA examination. The examiner noted that the Veteran was homeless and was residing with a female friend but denied that the relationship is meaningful other than they “help each other out” around the home. The examiner noted multiple incarcerations in 1990-1992 and 1999-2004. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The examiner further noted that the Veteran had markedly diminished interest or participation in significant activities, and a feeling of detachment or estrangement from others. The examiner also noted irritability or outbursts of anger, hypervigilance, and exaggerated startle response. Additionally, the examiner noted that the Veteran’s ambulation was within normal range, he had good hygiene, his speech was normal, his affect was nervous, the Veteran denied visual and auditory hallucinations, and the Veteran’s judgment was intact, although the examiner noted a history of poor personal choices. Furthermore, the Veteran denied homicidal ideation, and active suicidal ideation, but endorsed passive suicidal ideation. A December 2013 VA treatment record indicated that the Veteran was admitted to the hospital for claims of suicidal ideation. He was hospitalized again in June 2014. Treatment records during 2014 demonstrate continued problems with drug abuse, feelings of worthlessness, guilt, anxiety and anger. In March 2015, the Veteran underwent another VA examination. The examiner noted that the Veteran had six adult children from different sexual relationships. The examiner also noted that the Veteran appears to be somewhat estranged from his children and siblings, which likely is due to his long history of substance use problems. The Veteran reported that he has not been a romantic relationship since his last mental health C&P examination. He stated that he would like to be in a relationship again, however stated that he has difficulty with trusting other people and that he resented “everyone and everybody." It was noted that the Veteran had some friends and a few cousins that he speaks to occasionally. The examiner noted that the Veteran is currently homeless and has been generally unemployed since 2012. Upon examination, there was no noted impairment of thought processes or communication; no delusions or hallucinations; and he denied suicidal or homicidal thoughts. The examiner noted symptoms of depressed mood and anxiety. The examiner cited the Veteran’s strained relationship with his children and siblings and noted that there likely would be significant absenteeism in an occupational setting if he was using alcohol or an illicit substance. In an October 2015 statement by the Veteran, the Veteran stated that his homelessness and unemployment were caused by his service connected mental health disabilities, which the Veteran referred to as PTSD. The Veteran also noted that he has been through several PTSD programs to help him recover. Upon review of the evidence as a whole, and taking into account symptoms of both his service-connected trauma and stressor related disorder and his service-connected alcohol and substance use disorder disability, the Board finds that his collective symptoms have manifested in occupational nad social impairment with deficiencies in most areas throughout the appeal period. Although VA examiners have characterized the Veteran’s stressor related disorder as less severe, they specifically articulate that his substance abuse disorder in combination, causes more severe debilitation. His disability has been shown to manifest in depression, suspiciousness, anxiety; sleep disturbances; difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. He has experienced homelessness, periods of unemployment, hospitalizations due in part to suicidal thoughts and drug use, and legal problems. Although the Veteran has denied suicidal ideation at times during the appeal period, he has admitted that suicidal thoughts arise when he uses drugs, which as shown by the record has been an ongoing struggle for this Veteran. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s symptoms are of the type, extent, severity, and/or frequency that more nearly approximate occupational and social impairment with deficiencies in most areas, warranting the assignment of a 70 percent initial rating. The evidence of record is against a finding that a 100 percent rating is warranted, as the Veteran’s symptoms have not been shown to manifest in total occupational and social impairment. Despite strained relationships with his siblings and children, the Veteran nevertheless has maintained some of these relationships, as well as relationships with other extended family and friends. The Veteran has noted that he wants a better relationship with his children and grandchildren, and that he has remained in contact with one of his siblings. Furthermore, the Veteran has noted that he remains in contact with some of his cousins and has maintained some friendships through narcotics anonymous. Throughout the appeal period, the Veteran has been shown, when sober, to be alert and oriented to person, time, and place, and his speech was always noted to logical and of a normal rate and tone. He has regularly sought help for his care, and is forthright and lucid in discussing his symptoms with treating physicians. Although the Veteran has had suicidal thoughts, no physician has ever determined that he was in persistent danger of hurting himself or others. He manages his own medications, and can attend his medical appointments unassisted. In sum, the severity of the Veteran’s service-connected psychiatric disability, which includes substance abuse disorder, warrants the assignment of an initial rating to 70 percent, but no higher. The Board emphasizes that, in analyzing this claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating for stressor-related disorder with alcohol and stimulant use disorder. See Mauerhan, supra. While he has not demonstrated all of the symptoms associated with the 70 percent rating criteria during the appeal period, the Board acknowledges that not all of the demonstrative symptoms must be shown to warrant a higher rating. To this extent, the benefit sought on appeal is granted. REASONS FOR REMAND Entitlement to a TDIU is remanded As noted above, during the course of the appeal period, the Veteran has asserted he cannot work due to his service-connected other specified trauma- and stressor- related disorder with alcohol and stimulant use disorder. The Veteran’s work history is unclear. On remand the Veteran should be asked to complete VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Following any additional development deemed necessary, the AOJ should adjudicate the Veteran’s TDIU claim. This matter is REMANDED for the following action: 1. Send the Veteran a letter informing him of the evidence necessary to establish entitlement to a TDIU, and requesting that he complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 2. After completion of any development deemed necessary, adjudicate entitlement to a TDIU. If the benefit is denied, send the Veteran and his representative a supplemental statement of the case. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel