Citation Nr: 18136355 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 09-11 363 DATE: September 18, 2018 ORDER A disability rating in excess of 50 percent for post traumatic stress disorder with secondary alcohol abuse (PTSD) for the period prior to January 25, 2010 is denied. A disability rating in excess of 70 percent (but no more) for PTSD from January 25, 2010 is granted. FINDINGS OF FACT 1. During the appeal period prior to January 25, 2010, PTSD was not more nearly manifested by symptoms productive of occupational and social impairment with deficiencies in most areas. 2. During the appeal period from January 25, 2010, PTSD was more nearly manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; but not more nearly by symptoms productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for PTSD prior to January 25, 2010 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation of 70 percent, and no more, for PTSD from January 25, 2010 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 decision by the VA Regional Office (RO). In November 2012, and March 2017 the Board remanded this matter for further development. In an August 2012 rating decision, the Appeals Management Center (AMC) granted a 50 percent rating for PTSD from May 9, 2006, to June 2, 2011, and a 70 percent rating thereafter. In a February 2015 rating decision, the RO assigned a temporary 100 percent evaluation for the Veteran's PTSD from January 12, 2015 to March 1, 2015. In an October 2016, rating decision, a temporary 100 percent evaluation was assigned for the Veteran’s PTSD from September 9, 2014 to November 1, 2014. In November 2012, the Board granted a 50 percent initial rating for the Veteran’s PTSD with secondary alcohol abuse, from August 13, 2002 to May 9, 2006. This remand also involved a claim for a total rating based on individual unemployability (TDIU). In an October 2016 rating decision, TDIU was granted, effective January 26, 2010. As the TDIU claim has been granted, there is no controversy before the Board as to TDIU. Evaluations The Veteran submitted his increased rating claim on May 9, 2006. He contends that higher disability evaluations are warranted. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the rating schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. All mental disorders, Diagnostic Codes 9201 through 9440, are evaluated pursuant to the rating schedule set out at 38 C.F.R. § 4.130. The Veteran's mental disorder was assigned Diagnostic Code 9411. A 50 percent evaluation 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation 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 of 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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 rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The symptoms listed in the rating schedule for mental disorders 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule 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. As the instant case was certified to the Board prior to August 4, 2014 diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. §4.125 (2013). See 80 Fed. Reg. 14, 308 (March 19, 2015). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, the GAF score has been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. Feb. 23, 2018). 1. Entitlement to a disability rating in excess of 50 percent for PTSD with secondary alcohol abuse for the period from May 9, 2006 to January 25, 2010, is denied. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for PTSD prior to January 25, 2010. Neither the lay nor the medical evidence more nearly reflects symptoms productive of occupational and social impairment with deficiencies in most areas. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. In June 2006, the Veteran was seen at Memphis VA Medical Center for his alcoholism. The Veteran stated that he wanted help for his alcohol problem. At the time, he was drinking at least a “six-pack” every day. He wanted to get his life back and was suffering from frequent blackouts. He was admitted for detoxification and observation. He denied having self-harming or homicidal thoughts. During his March 2007 PTSD examination, the examiner noted that the Veteran is the youngest of three children. He indicated that he had good relationships with his family. He had been divorced, but was remarried to his second wife of 16 years. His daughter and her husband and two kids were currently living with him. Objectively, the Veteran was fully oriented. His mood was described as “okay but a little antsy.” His effect was mildly constricted. He presented with mild psychomotor agitation and drummed his legs and fidgeted more than was customary. No impairment of thought processes or content although abstract thinking abilities were “quite poor” and he was unable to provide abstract interpretations to proverbs or point out similarities between categorically related objects. His judgment, personal insight, and impulse control, appeared to be fair to poor at that time. The Veteran reported having made self-mutilating gestures while drunk, but he denied suicidal or homicidal ideations. His intellectual functioning was good with immediate memory. Abstract social judgment appeared to be adequate. Subjective symptoms were anxiety, nightmares, 6 hours sleep per night, short tempered, and restless. When the physician inquired why he was unable to work, the Veteran reported that he had difficulty working for other people. However, the Veteran’s personal appearance was good, and he remained independent. He took care of his own personal grooming, shopping, cooking and cleaning needs. He also was attending trade school for heating and air conditioning and had a small engine repair shop at the time of this examination. The only object manifestations of mental illness − other than his substance abuse history − that were observed during the interview were symptoms of mild psychomotor agitation and anxiety. There was not any indication of delusions or hallucinations. The attending physician reported that the claimant did not present with unusual problems in memory or cognition. He indicated the Veteran’s judgment, personal insight and impulse control appeared to be fair to poor at the time of the examination. While the Veteran admitted to having made some self-mutilating gestures while drunk, he denied any potentially lethal suicide. The examiner opined the Veteran appeared to have mild to moderate mood impairment overall. He appeared to be competent to handle his finances. In April 2007, a mental health consultation note indicated that the Veteran appeared to be managing his PTSD stressors well. He was maintaining sobriety and owned his own small engine repair business. He was noted to be fully oriented with good grooming and hygiene, and his thoughts were logical and coherent. In June 2007, the Veteran was reported as having increasing depression in the face of multiple stressors, but denied suicidal thoughts. He was going to Alcohol Anonymous (AA) regularly and had a sponsor. Also, he was attending vocational rehabilitation, and still going to school for heating and air-conditioning with a plan to finish in December 2007. In December 2007, the Veteran's wife called an emergency room claiming the Veteran was having a "nervous breakdown." The Veteran was seen in February 2008 and stated that his PTSD symptoms had dissipated due to less financial stress. However, at the time of the December 2007 incident, the Veteran thought the “world was coming to an end.” The Veteran reported that he was sleeping well although he was in pain. He denied any recent issues of alcohol dependence. He hoped to begin to get out in his shop when the spring came. He was reporting to be bothered by a friend’s death that took place several months ago in Iraq. He had dysthymic affect and denied suicide ideations. He reviewed coping strategies. He was assessed as having an anxiety disorder. A January 2009 psychiatric note revealed the Veteran, at the time, was still struggling with anger. However, to deal with his anger he avoided clips on television. Although he would awake two to three times a night, he could go back to sleep afterwards. He was also working at a factory making lawnmowers and snow-blowers. He denied any suicidal or violent ideations. An April 2009 psychiatry note indicated that the Veteran appeared to be doing “about the same” mentally. He was still working, but feared a lay-off. He was still married to his wife, and they were doing “ok” financially. He usually would take Ativan for his anger at work. He had a mildly depressed effect, was future oriented, denied suicidal ideations, and was alert and oriented. However, he provided limited insight into his alcohol problems. An August 2009 VA PTSD examination reflects that the Veteran reported three episodes where he was convinced that the world was ending. The last episode was as recent as two weeks before the examination. Symptoms were problems with concentration, irritability, anger, depression, paranoia, and being detached in social environments. He was dependent on medication to sleep. When he took his medication, he had fewer nightmares, but suffered from intrusive images during the daytime. He reported that he continued to see the faces of “the boys” he sent to war. Whenever he fell asleep, he would see the images of “those boys.” He reported being angry and fearing that he may lash out at others, but denied any episodes of violence towards others. He avoided war-related television programs. He reported that he dealt with these symptoms by smoking cigarettes, “taking a nerve pill,” or distracting himself by being with nature. He described having multiple episodes where he would black out. His wife described him as looking “dopey” with little verbal response during these blackouts. He did not report any episodes of violence. Objectively, he was fully oriented; his speech was normal and his thoughts were logical and goal-oriented with no evidence of looseness of association, flight of ideas, or delusions. Attention and concentration were limited at times. There were no current suicidal or homicidal ideations—past suicidal thoughts without intent were noted. During the period prior to January 25, 2010, occupational functioning due to deficiencies in most areas due to PTSD symptoms is not shown. The severity, frequency, and duration of symptoms reported and shown do not more nearly reflect the criteria for a higher evaluation prior to January 25, 2010. The evidence for this period reflects that his symptoms do not interfere with routine activities; although he has mood symptoms, he does not have near-continuous panic or depression affecting his ability to function independently and appropriately. The record reflects he has interest in working in his shop, he has maintained a job, and able to tolerate his daughter and family living with him. He reported having a friend whom he lost. The evidence does not reflect that his symptoms result in periods of violence or spatial disorientation. The history provided by the Veteran during this period reflects that he had the ability to maintain effective work and family relationships. Notably, he had his daughter’s four kids living with him throughout the period on appeal and reported no mental health difficulties associated with this situation. Additionally, the record reflects that the Veteran participated in group therapy for his PTSD and alcohol dependence during the appeal period—interacting with other and suggesting some level of self-awareness and desire to improve his well-being. At his March 2007 examination, he reported his attendance in trade school and that he was working in a small repair shop—again, interacting with others. At his August 2009 examination, he reported working off and on in temporary services since December 2007, which weighs against finding that there were disturbances of motivation. With regard to statements in March 2007 of self-mutilating gestures when he was drunk, this symptom appears isolated and not indicia of suicidal intent given his continuous denial of suicidal ideations during this period on appeal. The Board has also considered the Veteran’s statements and testimony. To the extent that he argues that his PTSD should be increased due to his high blood pressure and his depression, the Board notes that he is currently separately service-connected for hypertension. Furthermore, his symptoms of depression are rated as part of his PTSD and a separate rating would violate the rule against pyramiding. 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has considered that the medical evidence and lay testimony indicate that during this appeal period the Veteran's PTSD was consistently manifested by sleep disturbances with nightmares and difficulty falling back asleep, as well as black-outs, anger, paranoia, limited attention and concentration, hypervigilance, intrusive thoughts, self-isolation, fluctuations in motivation and mood due to depression and anxiety, and irritability. However, the preponderance of the evidence shows his symptoms frequency, severity, or duration contemplated by the next higher rating criteria. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran believed that he met the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for the higher rating than assigned, as explained and discussed above. On balance, the weight of the evidence is against the claim. Also, there is no basis to further stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings than previously assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, the claim is denied. The evidence of record is not in equipoise and, therefore, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a disability rating in excess of 70 percent (but no more) for PTSD from January 25, 2010 is granted. As an initial matter, the Board concludes that the criteria for a 70 percent rating from January 25, 2010 for PTSD is warranted as this is the date he reported last working (VA Form 21-8940-received January 9, 2013) and the evidence more nearly reflects—affording the Veteran the benefit of any doubt—that he had deficiencies in most areas from this date. Notably recurring anxiety/panic attacks significantly impacted employment, Veteran resumed alcohol use, and conflict with family are demonstrated in the records with the severity, frequency, and duration to more nearly reflect the symptoms required for a 70 percent rating. However, the Board concludes that the preponderance of the evidence is against an evaluation in excess of 70 percent for PTSD from January 25, 2010. Neither the lay nor the medical evidence more nearly reflects symptoms productive of total occupational and social impairment. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The recent January 2017 VA examination show that the Veteran’s symptoms, although severe, are not productive of total occupational and social impairment. His symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss along with difficulty establishing and maintaining relationships (work/socia) and impaired impulse control. Neither the lay nor the medical evidence reflects that these symptoms are of the severity, frequency, or duration to more nearly reflects total occupational and social impairment. The Veteran has not presented a favorable medical opinion to weigh in this matter. The Board has considered the 2011 and 2013 VA examination reports. The 2011 VA examiner concluded that the Veteran’s symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment and thinking and/or mood. The 2013 VA examiner concluded that his symptoms were productive of occupational and social impairment with reduced reliability and productivity. Neither examination reflects that the Veteran’s symptoms were productive of total occupational and social impairment. The June 2011 VA examination reflects symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss such as forgetting directions or recent events. Additionally, it was noted that he had flattened affect, circumstantial, circumlocutory or stereotyped speech, and panic attacks more than once a week (sic). He also had disturbances of motivation and mood with difficulty in establishing and maintaining effective work and social relationships. The February 2013 VA examination reflects symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. It was noted that, since his last VA examination, the Veteran had been seeing a social worker once a month for individual psychotherapy and for weekly PTSD groups. Regarding the groups, he reported, “I get bored with it.” His nightmares had resumed to at least two to three nights per week, so his medication was increased. He reported spontaneous flashbacks, “the shakes,” and panic attacks. He was getting depressed easily, and noted ongoing feelings of guilt related to mobilizing troops for Desert Storm. He reported having trouble sleeping through the night, low energy, and low motivation. His appetite had not changed. He denied having suicidal or homicidal ideations. Alcohol use secondary to his PTSD/depressed mood was also noted. The record shows that the Veteran has had relationships with his wife of over two decades, his daughter, her husband and her children. The Board has considered the allegations of extreme avoidance behaviors reported by the Veteran due to his stressful home situation and his distrust of people in the context of rebutting the narrative recorded by VA medical professionals examining the Veteran. However, even if the Board were to fully accept these reports as credible, his need to leave his stressful home situation is not the equivalent of social isolation or total social impairment given that the Veteran has been able to maintain relationships with the people he lives with and has successfully and continuously attended group sessions for his PTSD and alcohol dependence. While the Veteran reported in his July 2017 examination that he “was a loner” and “didn’t want any friends” these two statements hinged upon the Veteran’s inability to trust people, not total social impairment due to his PTSD. While the Board acknowledges that the record shows that his PTSD was the impetus to ending his employment in January 2010, the preponderance of the evidence does not indicate that the Veteran’s symptoms continued to be as severe as they were at that point in time to warrant a finding of total occupational impairment. Also, while his symptoms are severe and the record indicates that he continues to suffer from frequent panic attacks as recent as July 2017, no VA examiner has indicated that his PTSD renders him totally occupationally impaired. While it was reported that his range of employment would be restricted by his employment, his PTSD has not been found to make him unemployable. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran may believe he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for the higher rating than assigned, as explained and discussed above. On balance, the weight of the evidence is against the claim. Also, there is no basis to further stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings than previously assigned. See Hart, supra. Accordingly, the claim is denied. The evidence of record is not in equipoise and, therefore, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. C.A. SKOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wade, Associate Counsel