Citation Nr: 18155926 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-30 703 DATE: December 6, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with depressive symptoms, anxiety, and substance use disorder is denied. FINDING OF FACT The Veteran’s PTSD with depressive symptoms, anxiety, and substance use disorder did not manifest by symptomatology causing deficiencies in most areas, such as work, family relations, judgement, thinking, or mood. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for service-connected PTSD with depressive symptoms, anxiety, and substance use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2009 to October 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing on October 15, 2018 but did not attend. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s psychiatric disorder is rated under the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for PTSD with depressive symptoms, anxiety, and substance use disorder was granted with a 50 percent rating, effective October 25, 2012. The Board notes that Diagnostic Code 9411 directs the rater to consider the appropriate rating under the General Rating Formula for Mental Disorders (Mental Disorders Formula). The Veteran contends that he should have a rating in excess of 50 percent. A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; 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. The Veteran underwent a VA examination in January 2014 to establish service-connection and to evaluate the severity of his symptoms. The examiner opined that the Veteran suffered 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 medications. The examiner also opined that the Veteran had minimal impairments in social and occupational function which appeared to be caused by his PTSD and substance use. During this examination, the Veteran denied being irritable or having conflicts with his parents, and stated that he was close to his parents and sisters. He denied having problems with his job performance or getting along with coworkers. He reported that he was a hard worker, had good job performance as a firefighter, got along with his coworkers and supervisors, did not have issues with authority, enjoyed going to the gym, listening to music, playing video games, and going to the mall or movies with friends. The Veteran had been seeking treatment at the VA and had been put on medication for his mental health issues. On this medication, he generally slept well, but continued to wake up a few times a night, had nightmares two to three times a week about being trapped and helpless, and felt frightened and sweaty upon waking. The Veteran reported feeling sad all of the time, he had moderate symptoms of seeing failures in his past, had agitation and restlessness, suffered loss of interest in activities, had mild irritability, problems concentrating, and difficulty adapting to stressful circumstances, including work and a worklike setting. The Veteran reported that he suffered anxiety when there were people behind him or if he was in a crowd but denied having anxiety attacks or panic attacks. He ruminates and worries about upcoming events, but denied obsessive or ritualistic behavior, as well as manic or hypomanic symptoms. He reported extreme difficulty recalling important aspects of his traumatic events, was under distress from intrusive memories, becomes upset when reminded of events, felt emotionally detached from others, and had difficulty experiencing positive emotions. He makes significant efforts to avoid distressing memories, thoughts, feelings, and external reminders of his traumatic events, suffered moderate distress from nightmares, and had strong physical reactions when reminded of these events. Further, the Veteran reported strong negative beliefs about himself, others, and the world, hypervigilance, problems concentrating, and blamed himself and others for the stressful experiences he encountered. The Veteran denied having suicidal and homicidal ideation, denied engaging in reckless or self-destructive behavior, denied strong feelings of fear, horror, anger, guilt, and shame, and denied flashbacks but reported on three to four occasions that he was having déjà vu or nostalgic type feelings of being in Afghanistan. He recounted that he suffered from recurrent, involuntary, intrusive distressing memories and dreams, intense or prolonged psychological distress when exposed to internal or external cues that resemble the event, and marked physiological reactions to internal or external cues that resemble the event. He tries to avoid the distressing memories, thoughts, feelings and external reminders that could arose them. The examiner opined that the Veteran was unable to remember important aspects of the traumatic events typically due to dissociative amnesia and not due to other factors, such as a head injury or drug use. The Veteran recounted his substance use beginning after high school and continued on and off until he enlisted. After returning from Afghanistan, he began taking opiates which led to his discharge from the military. The Veteran was well groomed, casually dressed, made good eye contact, was cooperative with his affect mildly constricted, but became anxious and tearful when describing his traumatic experiences. The Veteran noted his mood was numb and reported hearing voices of people calling his name when nobody is there, but otherwise unable to provide details about these experiences. The examiner reported the Veteran was mildly fidgety, played with objects much of the exam, had good attention, and coherent thought process with no signs of abnormal thought content or thought disorder. The Veteran denied hallucinations, delusions, paranoia, significant memory problems although he is sometimes forgetful, was not at risk of harming himself or others, and had fair insight and judgement. The Veteran sought treatment in February 2014 for anxiety and opiod abuse. During this treatment, the Veteran reported poor sleep, decreased interests in enjoyable activities, some depression, and low energy. He denied outbursts, anger issues, feeling high highs, superpowers, periods where he required little sleep, suicidal and homicidal ideation, delusions, and thoughts of wanting to be dead, but did report paranoia that his coworkers and supervisors were judging him behind his back. He complained of worsening anxiety and difficulty sleeping, which required further medication. The Veteran appeared clean with his cognition grossly intact, oriented concentration, fair insight and judgment, cooperative, easy to engage, had excellent eye contact, appropriate speech, a good and congruent mood, stable affect, euthymic, smiled appropriately, and had a linear and goal oriented thought process without negative flights of ideas, disorganization, or tangential speech. The Veteran reported that his longest period of sobriety was in 2012 when his friends helped him to remain sober. In March 2014, the Veteran reported feeling down, depressed, and hopeless. In May 2014, the Veteran had a positive PTSD screen where he suffered from nightmares, tried not to think about his events and went out of his way to avoid situations that remind him of the events, was constantly on guard, watchful, easily startled, felt numb, and felt detached from others, activities, and surroundings. He continued to deny suicidal and homicidal ideation. In this mental status exam, he was pleasant, cooperative, casually dressed, euthymic mood, affect congruent, linear, clear, and relevant speech, had thoughts free of psychotic content and which were logical, no abnormal body movements, denied delusional thinking, but had some guilt related to his lifestyle. The Veteran’s father submitted a letter in May 2014 about his son’s condition. He reported that his son was guarded, introverted, did not talk about his experiences, distanced himself from friends and family, felt uncomfortable at home, felt he belonged back in Afghanistan to watch over his fellow soldiers, had insomnia, anxiety, isolation, depression, and problems reconnecting with friends and family. He stated his son was withdrawn, self-medicated which the Veteran’s father stated he had not done before joining the military, illusive, standoffish, has difficulty with conversations, relationships, and being in large crowds. He could not focus on anything, frequently left the house, had difficulty adapting to work which the Veteran’s father believed exacerbated his PTSD symptoms, had decreased ability to perform efficiently at work, lost his ability to cope, began neglecting personal appearance and hygiene, pulled away when his parents tried to help him, and would disappear for days on end. In September 2014, the Veteran entered treatment for his substance abuse. He was neatly groomed, casually dressed, moderately anxious, somewhat sullen or withdrawn, cast his eyes down, sighed, reported anxiety, self-doubt, depression, avoidance, isolation, poor personal relationships, general mistrust of others, and altered sleep pattern with episodic disturbing nighttime imagery and nightmares. During treatment in October 2014, the Veteran reported that he avoided important things, felt disconnected and isolated from others, had anxiety, sleep disturbance, and exaggerated startle. He had appropriate and unremarkable appearance, appropriate and pleasant behavior, maintained good eye contact, normal energy, mood and affect, frequent disruptions of sleep, was oriented, had normal stream of thought, normal speech, insight, judgment and his cognition was intact, logical, and linear, with sufficient memory. The Veteran was discharged from treatment in November 2014, and planned to live with his best friend. The Veteran continued to seek treatment for his substance abuse in August 2016. The Veteran reported that he would spend money on opiates instead of food, was experiencing serious anxiety, distanced himself from his family, found it difficult to maintain friendships, but denied any suicidal or homicidal ideation as well as hallucinations and paranoia. The Veteran was alert, clean, showed no unusual motor activity, had normal speech, and was eating and sleeping well while on medication and in treatment. He was pleasant, cooperative, had generally appropriate but sometimes intense eye contact, good mood, congruent affect, adequate speech, linear thought process, and did not show evidence of delusions. In September 2016, the Veteran reported improved anxiety, no depression, was casually dressed, cooperative and interactive, did not have any psychomotor abnormalities, good eye contact, and normal speech. His thought process was coherent, logical and goal directed, with no suicidal or homicidal ideation, paranoia, or hallucinations. His mood was okay, he had good insight and judgment, was alert and oriented, and had decreased isolation and insomnia with medications and therapy. The Veteran sought treatment for his substance abuse again in December 2016 and January 2017. In December, he reported he was stable on his current medication, did not get along with his parents and felt alienated from them, enjoyed working as a handyman, was alert, oriented, clean, adequately dressed and groomed, low but otherwise normal speech, good but evasive eye contact with appropriate interpersonal interactions, and normal motor behavior. His thought process was logical and goal oriented, his thought content was normal, he denied feelings of hopelessness, guilt, or worthlessness but did report sometimes crying without reason. He continued to deny suicidal and homicidal ideation, had good appetite and energy, denied hallucinations, delusions, increased energy, a decreased need for sleep, being talkative, impulsive, irritable, or engaging in risky behavior. He continued to have flashbacks, nightmares, being hypervigilant by constantly looking out for danger, easily startled and jumpy by unexplained noises, was a loner, although he reported he had some friends, avoided crowds, and his judgment was fair. During this treatment in January 2017, the Veteran had strong ego strength, positive coping skills, positive problem-solving ability, strong social support and sober support system, and appropriate reality testing ability. The Veteran continued to be appropriately groomed and dressed, fully awake and aware with sustained attention, normal concentration, a cooperative attitude, normal mood with unremarkable motor behavior, but continued to have anxiety. His speech was normal, he did not have suicidal or homicidal ideation, denied hallucinations and delusions, was aware of the day and year, his surroundings, and circumstances, his memory was grossly normal, he was aware of needing help, and he had adequate judgment. In May 2017, the Veteran was appropriately and casually dressed, fully awake and alert, sustained attention and normal concentration, had a cooperative attitude, was poised and engaged, his mood was congruent and normal, he had unremarkable motor behavior, normal speech, coherent thoughts, normal memory, was aware he needed help, and had adequate judgment. He reported he was depressed but denied suicidal and homicidal ideation, hallucinations, and delusional thoughts. Based on his reported symptoms during his January 2014 examination, the Veteran was assigned a 50 percent rating. The Veteran suffered from depression, anxiety, self-medicated with opiates which resulted in some impaired judgment, and had some difficulty establishing and maintaining effective work and social relationships. The Veteran had difficulty adapting to stressful circumstances, work and worklike settings, although he stated that he enjoyed his job, and suffered from chronic sleep impairment, although he reported his sleeping improved while on medication. The examiner opined that all of these symptoms would result in occupational and social impairment which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress. Although the Veteran’s father was competent to report on his son’s behavior while living at home, such as his son neglecting his appearance and his lack of friends, the Veteran’s overall mental health treatment and substance abuse records are more closely aligned with the criteria for a 50 percent rating. The Veteran does not present with symptoms that would warrant a 70 percent rating. The Veteran’s father reported that the Veteran never self-medicated before joining the military, but the Veteran reported that he did use opiates after high school and before joining the military. The examiner reported that the Veteran had mild PTSD with depressive and anxiety symptoms and opiate use disorder that caused minimal impairments in his social and occupational functioning despite some symptoms that could be considered indicative of a higher level of impairment. The Veteran has continued to show similar symptoms to those noted at the VA examination. Throughout the appeal period the Veteran denied suicidal and homicidal ideation, hallucinations, delusions, and only reported paranoia twice, once when he heard his name being called and again when he believed that his coworkers were judging him. The Veteran did not suffer occupational and social impairment with deficiencies in most areas as he continued to work on and off during this time, maintained a stable support system of family and friends, had normal judgment in that knew he had a problem with opiates, which resulted in him seeking treatment for his problem, and the Veteran’s mood was stable but sometimes depressed. Although the Veteran sought treatment multiple times for his substance abuse, his records show that he continued to be a functioning adult although he had periods of reduced reliability and productivity due to being in treatment. His treatment records show that his speech was logical and relevant, he did not suffer near continuous panic or depression, he was able to function independently, appropriately, and effectively despite his substance abuse, and maintained his impulse control. The Veteran was cooperative and friendly during treatment, had stable affect, a linear, goal oriented thought process, and had intact cognition. The Veteran had appropriate grooming and hygiene. While in treatment, the Veteran got along with other patients, established friends, and his parents continued to be supportive of his sobriety. The Veteran also reported that he was stable on medication and felt his sleep and mood were better while on medication. Overall the Veteran continues to display symptoms that more closely approximate a 50 percent rating. For these reasons, a rating in excess of 50 percent for service-connected PTSD with depressive symptoms, anxiety, and substance use disorder is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk