Citation Nr: 18156213 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-29 288 DATE: December 7, 2018 ORDER Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) with alcohol use disorder is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s service-connected PTSD with alcohol use disorder has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but it has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for PTSD with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps from December 2009 to January 2011 and September 2012 to August 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in April 2016. A statement of the case (SOC) was issued in April 2017, and the Veteran filed his VA Form 9 in May 2017. The Veteran testified before the undersigned via videoconference at a hearing in August 2017. A transcript of the hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Increased Rating for Post-Traumatic Stress Disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the 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. 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. In determining the severity of a disability, the Board is required to consider 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 the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s post-traumatic stress disorder (PTSD) with alcohol use disorder is currently evaluated as 70 percent disabling under Diagnostic Code (DC) 9411, which concerns mental disorders. 38 C.F.R. § 4.130, DC 9411. The Veteran contends he is entitled to an evaluation of 100 percent. A 70 percent evaluation is warranted where 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 that is 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 evaluation requires 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. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 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, not 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 on the basis of social impairment. See 38 C.F.R. § 4.126(b). Here, at the Veteran’s VA examination for PTSD in October 2017, the examiner, using DSM-V criteria, determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran exhibited symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), flattened effect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work, or a work-like setting), and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran was reported to have recurrent, involuntary, and intrusive distressing memories of the traumatic events related to his PTSD, recurrent distressing dreams related to the traumatic events, dissociative reactions (e.g., flashbacks) in which he feels or acts as if the traumatic events were recurring (which may include complete loss of awareness of present surroundings), and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic events. He avoids distressing memories, thoughts, or feelings associated with the traumatic events; and he avoids external reminders that arouse distressing memories, thoughts, or feelings associated with the traumatic events. The Veteran had negative cognitions and moods, including persistent and exaggerated negative beliefs or expectations about himself, others, or the world; persistent negative emotional state; markedly diminished interest or participation in significant activities; and feelings of detachment or estrangement from others. He was further noted to have irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; reckless or self-destructive behavior; hypervigilance; exaggerated startled response; problems with concentration; and sleep disturbance. These PTSD symptoms were reported to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran reported problems with memory and concentration, and he has trauma-related nightmares. He described having intermittent periods when he feels “outside of himself” and does not feel grounded. At these times, he vividly feels he is “right back there” at the traumatic events of his time in service. The Veteran admitted that his alcohol consumption does not help his anxiety or sleep problems. The October 2017 VA examiner observed that the Veteran had excellent hygiene and grooming. The Veteran’s attitude was cooperative; his behavior was appropriate and polite; and he was alert and oriented. His speech was normal, and his thought process was clear, coherent, and relevant. He denied any suicidal or homicidal ideation. The examiner also noted that the Veteran is capable of managing his financial affairs. At the time of the October 2017 VA examination, the Veteran was unmarried but had full custody of his daughter. He said his daughter grounds him and gives him a reason to live and function, and his days were primarily focused on caring for her. The Veteran was in regular contact with his mother and aunt but otherwise described himself as socially isolated. He said his bad temper had alienated a lot of friends and family members. He had moved from Ohio to Indiana because of his desire to isolate himself. He said he typically does not leave his apartment unless he has a treatment appointment or goes to his aunt’s home. His home and his aunt’s home are part of his “comfort zone”, and to go outside of that comfort zone to do things like grocery shopping causes him overwhelming anxiety. He avoids crowds, and he gets anxious when something unexpected happens. At another VA examination for PTSD in March 2016, the Veteran exhibited similar symptoms to those in the October 2017 VA examination. The March 2016 examiner additionally listed suspiciousness and impaired judgement among the Veteran’s symptoms. The examiner also reported that the Veteran had intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events from his active service. The examiner further noted that the Veteran had a persistent, distorted cognitions about the cause or consequences of the traumatic events and persistent inability to experience positive emotions. The Veteran had no history of psychiatric hospitalizations or intensive treatments for his PTSD. At the March 2016 VA examination, the Veteran reported that he had a really good relationship with his aforementioned daughter, and he said he had an adequate relationship with his father. He has friends from the military that he remains in contact with, as well as friends from childhood. The Veteran reported that he often displays sporadic behavior that has caused some of his friends to withdraw from him. He said that he prefers small amounts of social activity and engagement. He also reported that he had not recently had any significant dating relationships. In relation to his past employment, the Veteran has said that he has quit more than one job since discharge due to problems related to his PTSD symptoms, including irritability and anger issues, difficulty getting along with other people or maintaining effective work relationships, difficulty concentrating, memory issues, sleepiness, difficulty maintaining a schedule, tardiness, issues with attendance, and episodes of dissociation or flashbacks at work or while driving on the job. His PTSD-related problems with sleep and concentration and his dissociative experiences reportedly caused impairment in work functioning. He also reported getting into a verbal altercation that almost became physical. However, the March 2016 examiner stated that, although the Veteran may have a moderate level of difficulty adjusting to a work-like setting, his symptoms would not preclude him from performing all work-related activities or eventually adjusting to a work-like setting. The Veteran has received additional regular treatment of his psychiatric condition over the course of the appeal period, including appointments every three months for medication management. At most of his PTSD-related examinations and appointments, he has exhibited symptoms consistent with those described above. After a thorough review of the evidence, it appears that the symptoms associated with the Veteran’s service-connected psychiatric disabilities most closely parallel the type of symptoms described in the criteria for the 70 percent disability rating. The Veteran has exhibited occupational or social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, DC 9411. A higher rating of 100 percent is not warranted, as the Veteran’s PTSD has not resulted in total occupational and social impairment, and he did not have symptoms or overall impairment more closely approximating the criteria for a 100 percent disability rating. 38 C.F.R. § 4.130, DC 9411. The Veteran has not exhibited symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The Veteran still has a very good relationship with his daughter, of whom he has full custody. A behavioral health treatment note from June 2016 reported that the Veteran takes his daughter shopping, to parks, and to visit family. The record also contains accounts of contact with his parents, his sister, and his aunt, as well as friends from childhood and the military. The Veteran says he has hallucinations where he vividly feels as if he was re-experiencing the traumatic events from his time in service. However, when he describes these episodes at his psychiatric examinations, his examiners have consistently diagnosed these as PTSD-related dissociative symptoms or flashbacks rather than hallucinations for medical purposes. The Board acknowledges that the Veteran contends his PTSD warrants an evaluation in excess of 70 percent. However, in determining the actual degree of disability, contemporaneous medical records and an objective examination by a health professional are more probative of the degree or severity of the Veteran’s impairment. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the Veteran, who lacks medical training or expertise, is not competent to render an opinion as to the medical significance of his symptoms or the nature of his diagnosed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). The Board finds the October 2017 VA examination to be the most probative evidence of record regarding the status of the Veteran’s mental disorders. The examiner’s rationale is logical, well-reasoned, thorough, and based on consideration of the Veteran’s VA e-folder, CPRS, medical records, and reported history. This VA examiner’s evaluation is also consistent with the totality of the symptoms and the effects of the Veteran’s PTSD reported in his treatment records and by his treatment providers. Based on above evidence, the current 70 percent disability rating is the appropriate evaluation for the Veteran’s PTSD with alcohol use disorder. The preponderance of the evidence is against an assignment of a 100 percent rating at any point during the appeal period. Therefore, the Veteran’s claim of an evaluation in excess of 70 percent for post-traumatic stress disorder with alcohol use disorder must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.21, 4.126, 4.130, DC 9411. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND The Veteran contends that he is entitled to a total disability rating based on individual unemployability (TDIU). The Board has determined that additional development is necessary prior to the adjudication of the Veteran’s claim of TDIU. The VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). A claim for a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). The law provides that the VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Here, the Veteran currently has a combined evaluation of 70 percent based on his service-connected post-traumatic stress disorder (PTSD), tinnitus, and right hamstring strain. As discussed before, his PTSD is currently rated at 70 percent disabling. The Veteran submitted an application for TDIU in July 2015. Since discharge from service, the Veteran reports that he has been employed for short terms. His TDIU application (VA Form 21-8940) lists employment at House of Larose, Inc. from August 2015 to September 2015 and at Fallsway Equipment from October 2014 to January 2015. The Veteran stated that he quit those jobs because he had issues related to his PTSD symptoms, including irritability and anger issues, difficulty maintaining effective work relationships, difficulty concentrating, sleepiness, memory issues, difficulty maintaining a schedule, tardiness, issues with attendance, and episodes of dissociation or flashbacks while at work or while driving on the job. On his July 2015 application for TDIU, the Veteran also reported that his physicians have informed him that he is not able to work due to his back condition with pinched nerve, which is not currently service connected. The Veteran reports he has had periods of unemployment. He was not employed full-time at the time of his July 2015 TDIU application. However, his employment status since the July 2015 TDIU application is unclear. The record indicates the Veteran has had employment since his July 2015 TDIU application. In a statement from August 2017, the Veteran mentions a “current” job that had lasted a few months up to that point, at which the Veteran again cited problems related to his PTSD symptoms, including issues in handling dangerous chemicals. At his October 2017 VA examination for PTSD, the Veteran mentioned he had worked for two months at an employer in Decatur, IN, but he felt he had to quit before he got fired due to issues of irritability and anger, problems concentrating, sleep disturbance, tardiness, problems staying at work, dissociative experiences, and making mistakes at work that included handling of hazardous chemicals. However, the exact dates of his employment and the nature of his duties at this position are unclear. It is also unknown whether or not he has been employed since leaving this position. Therefore, on remand, the Board requests that the Veteran submit updated information concerning his employment over the last several years, including any employment since his July 2015 TDIU application. Additionally, a letter from September 2018 indicates that the Social Security Administration (SSA) has determined that the medical requirements for disability have been met. However, the record does not contain evidence of the SSA’s reasons or rationale for this determination. The Board finds that the Veteran and his representative have indicated that the Veteran’s SSA disability records are relevant to his TDIU claim on appeal. Consequently, the Board must remand this matter at this time in order for attempts to be made to obtain any additional SSA records pertaining to the Veteran’s claim for SSA benefits. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). Accordingly, the matter is REMANDED for the following actions: 1. Request that the Veteran submit an updated Application for Increased Compensation Based on Unemployability (TDIU) (VA Form 21-8940). The form must contain the latest updated information concerning the Veteran’s employment. 2. Obtain any outstanding relevant administrative and medical records related to the Veteran’s claim for disability benefits from the Social Security Administration (SSA), and associate them with the claims file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel