Citation Nr: 18156064 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 18-22 180 DATE: December 6, 2018 ORDER A schedular rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The impairment associated with the Veteran’s PTSD and related alcohol use disorder most closely approximates occupational and social impairment with difficulties in most areas, such as work, family relations, and mood, due to symptoms such as disturbance of mood and motivation, irritability, anxiety, sleep impairment, and depression; total occupational and social impairment is not shown. 2. It is at least as likely as not that the Veteran is unemployable as a result of impairment associated with PTSD and his related alcohol use disorder. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 70 percent for PTSD with alcohol use disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 1967 to January 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The evidence indicates that the Veteran is no longer able to hold a job as a result of PTSD-related symptomatology. As such, the Board has expanded the appeal to include the matter of his entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (if, in connection with making a claim for the highest rating possible for a disability, a claimant submits evidence of a medical disability, and evidence of unemployability, the matter of the claimant’s entitlement to a TDIU is considered a component of the claim for a higher rating). 1. Entitlement to a schedular rating in excess of 70 percent for PTSD. The Veteran contends that his PTSD symptoms have caused total occupational and social impairment during the period on appeal. After a review of the evidence of record, the Board finds that a schedular rating in excess of 70 percent for PTSD is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran’s appeal to the Board in May 2018, which is after August 4, 2014. Thus, the version of 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable. In any event, the Board will still consider any private or VA examiner’s discussion of both the DSM-IV and DSM-5 in adjudicating the current Veteran’s PTSD claim, in order to provide the Veteran every benefit of the doubt. 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As provided by the General Rating Formula, a 50 percent rating is assigned when 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is in order when there is 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 in order when 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; and memory loss for names of close relatives, own occupation, or own name. Id. A veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan, 16 Vet. App. at 442. The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. Id. The Veteran’s service-connected PTSD is currently assigned a 70 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran initially filed a claim for PTSD in January 2013 and was granted service connection at a 50 percent rating in a February 2014 rating decision with an effective date of January 14, 2013. The Veteran timely appealed the rating and in a November 2017 rating decision, the RO increased the Veteran’s PTSD rating to 70 percent with an effective date of January 14, 2013. The Veteran was afforded a VA examination in February 2014. The examiner confirmed a diagnosis of PTSD with alcohol use disorder on a moderate and continuous basis. The examiner reported that the Veteran’s alcohol use is secondary to PTSD and exacerbates the mood instability symptoms of PTSD. The examiner selected the disability severity level equating to a 50 percent rating for PTSD for symptoms productive of occupation and social impairment with reduced reliability and productivity. The Veteran reported being married for many years and having children, one of whom has an ongoing drug dependency that contributes to the volatility of the Veteran’s psychological state. The Veteran was working full time at the time of this examination. Reported symptoms of the Veteran’s PTSD were depressed mood, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. At a May 2014 VA treatment appointment, the Veteran reported no suicidal or homicidal ideation. He reported drinking heavily daily. The medical provider opined that the Veteran’s main problem was substance abuse without clear evidence of PTSD at this examination. In March 2015, the Veteran reported working two to three times per week after being retired as an electrical engineer. There were no reports of hallucinations or psychosis. The Veteran reported drinking daily, sometimes more than a pint of hard liquor. The Veteran’s judgment, impulse, and insight were adequate. There were no delusions or paranoia. Speech was normal in rate and tone. The Veteran had a normal memory. At a July 2017 VA PTSD examination, the examiner confirmed a diagnosis of PTSD with alcohol use disorder. The examiner chose the descriptor correlating the Veteran’s level of severity of PTSD symptoms to a 70 percent evaluation; that is, symptoms productive of occupational and social impairment with deficiencies in most areas. The Veteran reported that he retired in 2014 from a career as an electrical designer for a utility. The examiner reported that although the Veteran had a long career, things “deteriorated” at the end, beginning with the Veteran’s entrance into alcohol rehabilitation in 2012, that impacted his work performance. Ultimately, the Veteran remained sober for two months after rehabilitation. Again, the examiner noted that the Veteran’s alcohol use disorder was directly related to the Veteran’s service-connected PTSD. The Veteran was on medication for PTSD. The Veteran reported that his drinking was “a lot worse.” Additionally, there were increased psychosocial stressors related to the family including more legal troubles for his daughter who had a drug dependency, and marital issues with his wife. Reported symptoms of the Veteran’s PTSD were depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; disturbances of mood and motivation; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was casually dressed, with fine grooming; however, he was intense and emotional. The examiner noted no indication of danger to self or others. In February 2018, VA treatment records document that the Veteran was spending more time out and about in the community and at church, although he was still dealing with his daughter’s drug dependency and its related troubles. In June 2018, VA treatment records document that the Veteran was spending time golfing with friends and denied using alcohol and drugs. October 2018 VA treatment records note that the Veteran and his wife were caring for their daughter with the substance abuse problem. The Veteran’s PTSD was “complicated by alcohol dependence and by dysfunctional family dynamics.” The Veteran continued to take medication for PTSD and alcohol dependence. The Veteran reported attending regular gatherings of the unit he served with in Vietnam and had reached out to another Veteran he had not seen for decades. The November 2018 statement by the Veteran’s wife, who has known the Veteran since they were in high school together, describes a man with a short fuse and an impact on the family derived from alcohol abuse. The Veteran’s wife describes restraining herself from conversing with her husband if she fears the topic of discussion will bother him because it leads to the Veteran feeling attacked, leaving the house, and getting drunk. She described the Veteran throwing things, breaking things, and ripping the banister off the wall in the house. According to the Veteran’s wife, she has become more sensitive to his reactions since the Veteran retired and has been at the house more often. She also describes additional psychosocial pressures for the Veteran related to murders of more than one friend. Based on the medical evidence of record as discussed above, the Board finds that the Veteran’s PTSD symptoms are productive of occupational and social impairment with deficiencies in most areas such as family relations, judgment, thinking, or mood, consistent with the 70 percent disability rating that is currently in effect. The Veteran’s PTSD symptoms do not more nearly approximate the criteria for a 100 percent disability rating. Throughout the Veteran’s mental health treatment records, there are regular notes that the Veteran is not suicidal or homicidal and that he does not have auditory or visual hallucinations or a psychosis. The Veteran is not reported to have gross impairment in thought processes or communication. The treatment records do not document that the Veteran has disorientation to time and place. Although the Veteran has many psychosocial stressors, he also manages to care for family members in distress or ill health. As such, total social impairment is not shown as contemplated by a 100 percent evaluation. Accordingly, the preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent. 2. Entitlement to a TDIU. The Veteran contends that he is unemployable as a result of his service-connected PTSD. The Board agrees. As noted previously, disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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. In this case, the Veteran contends that he is prevented from performing substantially gainful employment due to his service-connected PTSD and related alcohol use disorder. The Veteran is service-connected for PTSD at 70 percent from January 14, 2013. As such, he meets the TDIU minimum percentage requirements from that date. 38 U.S.C. § 4.16. The only remaining question is whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. Id. The Veteran’s records document that he was an electrical engineer before retiring in 2014. The Veteran then worked two to three times per week and ultimately discontinued working sometime in 2015. The Veteran’s treatment records document a history of alcohol use dating back to active service in Vietnam, as well as sporadic phases of drug use in the past. The Veteran has psychosocial stressors including marital difficulties and other “dysfunctional” family relations. See VA treatment records dated in October 2018. The Veteran and his wife care for their daughter who has a drug dependency that also adds to the Veteran’s stress. At the July 2017 VA PTSD examination, the examiner confirmed a diagnosis of PTSD with alcohol use disorder. The Veteran reported that he retired in 2014 from a career as an electrical designer for a utility. The examiner reported that although the Veteran had a long career, things “deteriorated” at the end, beginning with the Veteran’s entrance into alcohol rehabilitation in 2012, that impacted his work performance. Ultimately the Veteran remained sober for two months after rehabilitation. Again, the examiner noted that the Veteran’s alcohol use disorder was directly related to the Veteran’s service-connected PTSD. The November 2018 statement by the Veteran’s wife, who has known the Veteran since they were in high school together, describes a man with a short fuse and an impact on the family derived from alcohol abuse. As noted previously, the Veteran’s wife describes restraining herself from conversing with her husband if she fears the topic of discussion will bother him because it leads to the Veteran feeling attacked, leaving the house, and getting drunk. She described the Veteran throwing things, breaking things, and ripping the banister off the wall in the house. According to the Veteran’s wife, she has become more sensitive to his reactions since the Veteran retired and has been at the house more often. She also describes additional psychosocial pressures for the Veteran related to murders of more than one friend. A November 2017 VA treatment record records that the Veteran reported sleeping in his truck near bars so that he could drink, with the additional preparation of carrying a toothbrush and other toiletries in the truck so he could stay out all night. Since the time of the Veteran’s application for service connection for PTSD in January 2014, the VA treatment records document problems with alcohol dependency. A March 2014 VA treatment record documented reports that the Veteran was drinking heavily on a daily basis. A March 2015 VA treatment record documented reports of the Veteran drinking more than one pint of hard liquor daily. The Board finds that the Veteran’s alcohol dependency, which is secondary to service-connected PTSD, prevents him from securing and maintaining gainful employment. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.3. The claim for a TDIU is granted. 38 C.F.R. § 4.16(b). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs