Citation Nr: 19129303 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 17-56 215 DATE: April 16, 2019 ORDER An initial 70 percent rating (but no higher) for posttraumatic stress disorder (PTSD) with secondary alcohol use disorder prior to May 3, 2016 is granted, subject to the rules and regulations governing the award of monetary benefits. An initial rating in excess of 70 percent for PTSD with secondary alcohol use disorder from May 3, 2016, is denied. A total disability rating based on individual unemployability (TDIU) is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Throughout the appeals period the Veteran’s PTSD with secondary alcohol use disorder has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment has not been shown. 2. The Veteran met the schedular requirements during the appeals period and the competent evidence reasonably establishes the Veteran’s service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to May 3, 2016, the criteria for a disability rating of 70 percent, but no higher for PTSD with secondary alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411 (2018). 2. Since May 3, 2016, the criteria for a rating in excess of 70 percent for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, DC 9411 (2018). 3. The schedular requirements for TDIU are met and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated January 2015 and October 2015 of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial disability evaluation for PTSD with secondary alcohol use disorder in excess of 50 percent prior to May 3, 2016 and in excess of 70 percent thereafter. Increased Rating Claims-Legal Criteria Disability evaluations are determined by the application of the 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 practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 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, if 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). 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). The Veteran’s PTSD, previously rated anxiety disorder, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a 50 percent rating is warranted for a mental disorder that results in 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. A rating of 70 percent is warranted for a mental disorder that results in 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. A 100 percent rating is assigned when the condition results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. Merits Prior to May 3, 2016, the Veteran was assigned an initial disability evaluation of 50 percent for PTSD with secondary alcohol use disorder. Thereafter, the Regional Office (RO) concluded that the Veteran’s service-connected psychiatric disability warranted an increased rating from 50 to 70 percent based upon additional medical evidence obtained during the appeals period. The Veteran seeks an increased evaluation for both time periods. After a careful review of the evidence of record, to include the Veteran’s VA treatment records, VA PTSD examination reports dated November 2014 and May 2016, and lay statements, the Board finds that for the entire period on appeal the Veteran’s psychiatric symptoms produced deficiencies in most areas but did not result in total occupational and social impairment. In a November 2014 VA examination, the examiner determined that the Veteran met the full diagnostic DSM-5 criteria for PTSD. The Veteran also met the criteria for Alcohol Use Disorder, which the examiner opined was likely secondary to his PTSD diagnosis and helped the Veteran deal with his PTSD symptoms. The examiner opined that as a result of his psychiatric symptoms, the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Veteran reported symptoms including nightmares, intrusive memories, feelings of detachment, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, sleep disturbance, concentration problems, depression, anxiety and agitation. Although the Veteran had been married for 43 years, he indicated that he and his wife had frequent arguments and separation. He was employed part time as a truck driver since 2011 and indicated that he had problems at work including disciplinary actions for not being able to get along with co-workers. The Veteran received mental health treatment including therapy and psychotropic medications. The Veteran stated that things worsened when he retired and heavy alcohol usage as well as substance use to help manage his symptoms was noted. A May 2016 VA examination concluded that the Veteran continued to meet the criteria for PTSD and Alcohol Use Disorder pursuant to the DSM-5. The May 2016 VA examiner erroneously concluded that the Alcohol Use Disorder was a new diagnosis. The Veteran’s symptoms were consistent with those reported in the November 2014 VA examination report. The May 2016 examiner opined that the Veteran’s service-connected PTSD with secondary alcohol use disorder caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that he last worked on September 9, 2015, but had difficulty maintaining employment because of arguments and difficulty getting along with others. Notably, the VA examiner also opined that as in pertained to individual unemployability, the Veteran’s PTSD did not functionally impair him and indicated he could perform both physical and sedentary employment. The Veteran’s VA treatment records throughout the appeals period reflected that the Veteran struggled with symptoms including sleep impairment, passive suicidal ideation, aggravated startle response, night sweats, irritability, nightmares anxiety and depression. The Veteran reported that his symptoms had been stable as long as he was working. However, when he was laid off from his first job he became depressed. See Central California VA Medical Center (VAMC) Outpatient Note, May 2016. The Veteran has not worked full time since 2009 and that gave him too much time to think. See Tulare VAMC Mental Health Initial Evaluation Note, June 2014. The Veteran indicated that he has been coping with depression for a long time and has even contemplated suicide at times. He has become more socially withdrawn, morose and negative. He found himself crying himself to sleep and felt he could not confide in anyone. The Veteran reported his sleep was awful with frequent awakenings and nightmares involving explosions. Id. Symptoms of hypervigilance, disturbing dreams, anxiety, and exaggerated startle response were also noted. The impression was PTSD with moderate symptoms. See Tulare VMAC Mental Health Outpatient Note, October 2014. Given the foregoing the Board finds that the symptoms of the Veteran’s PTSD with secondary alcohol use disorder most closely approximates the criteria for a 70 percent rating throughout the entire appeals period. Despite the findings from the November 2014 VA examiner that the Veteran’s psychiatric disability resulted in only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, or reduced reliability and productivity, his VA treatment records consistently reflect that the Veteran had a continued difficulty adapting to stressful circumstances and maintaining effective relationships due to his anxiety. Treatment records corroborate the Veteran’s contention that after he stopped full-time employment, his symptoms became worse. Throughout treatment the Veteran acknowledged that he often was impaired by his anxiety and depression despite medical intervention. In addition, the Veteran’s PTSD caused him mood swings, chronic sleep impairment, hypervigilance and produced socially isolating behaviors. The Board finds that these symptoms and the level of impairment the Veteran has experienced throughout the appeals period are more congruous with the opinion of the May 2016 VA examiner. The Board has considered whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged ratings”). The Board finds that the Veteran’s PTSD with alcohol use disorder symptoms have been consistent with the 70 percent rating currently assigned for the entire relevant time period here on appeal. As was previously noted, the Veteran’s psychiatric symptoms have been consonant in frequency and severity, and the record does not indicate any significant increase or decrease in such symptoms during the appeals period. Accordingly, staged ratings are not warranted and the 70 percent rating that is now assigned for the entire period here on appeal is appropriate. While the evidence supports a finding that the Veteran has significant impairments, the Board also notes that despite his psychiatric disability the Veteran has been able to maintain relationships with his wife and daughter and regularly attend individual therapy. Although the Veteran suffers from depression and anxiety, impacting his ability to relate to others, the record also documented that he connected with other family members especially his brother and a friend from the service in Vietnam before they passed. These facts preponderate against a finding that the Veteran’s psychiatric disability results in total occupational and social impairment. Accordingly, the Board finds that the symptoms of the Veteran’s psychiatric disability do not rise to the level anticipated by the criteria for a 100 percent rating under the General Rating Formula for Mental Disorders but most closely approximate a 70 percent rating. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, because of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), “Marginal employment shall not be considered substantially gainful employment.” 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that the Veteran filed a claim for TDIU in August 2015 which was denied. See Rating Decision, October 2015. However, TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Further, once the issue of TDIU has been raised, the Board has jurisdiction over the TDIU claim for the entire period of the underlying disability rating. Accordingly, the Board is mandated to adjudicate the Veteran’s claim for TDIU for the entire appeals period. The Veteran’s service-connected disabilities are PTSD with secondary Alcohol Use Disorder, rated at 70 percent, bilateral hearing loss, rated at 40 percent and tinnitus, rated at 10 percent. Thus, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16 (a), are satisfied. In light of the Board’s decision that the Veteran is entitled to a rating of 70 percent rating for his psychiatric disability for the entire period on appeal, he has met the schedular rating requirements since the date of his claim. The Veteran contends that his service-connected disability renders him unemployable. On review of the record, the Board finds that such is reasonably shown. The Veteran’s claims file documented that he last worked full-time in 2009 in quality control. See VA 21-8940, August 2015. Notably, in his nine years of employment there he was absent due to illness less than 30 days in total. As previously discussed, the Veteran described an exacerbation in his PTSD and alcohol use disorder symptoms after he was laid off from his full-time employment. From January 2011 through September 2015 the Veteran worked part-time as a truck driver “as his disabilities allowed”. See VA 21-4192 Employer Response, September 2015. The Veteran described frequent arguments with co-workers and disciplinary actions in this position, however information from the employer was silent on this issue. The Board also reviewed employment information from an employer who hired the Veteran as a part time sales associate job in a gun shop. That position lasted approximately one month from June 2015 to July 2015. See VA21-4192, April 2016. The reason for his termination was that the Veteran was not functional as a sales associate. In an accompanying letter, the employer noted that the Veteran was moody, unpredictable, guarded, depressed and struggled to interact appropriately with co-workers and members of the public. See R.L.W Correspondence, October 2015. Both the November 2014 and May 2016 VA examinations documented the Veteran’s PTSD and alcohol use disorder symptoms impacting his ability to obtain and maintain substantial gainful activity which included depressed mood, suspiciousness, chronic sleep impairment, and the inability to establish and maintain effective relationships. Both examiners indicated that the Veteran had difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances including work or work like settings. The Board accords these findings great weight. The Board also acknowledges the conclusion by the May 2016 examiner that the Veteran’s symptoms did not cause functional impairment. However, the competent and credible evidence of record indicates that the Veteran’s disabilities in combination significantly impair his ability to work cooperatively and effectively with co-workers, supervisors and the public and maintain the persistence and pace substantial gainful activity requires. Given the foregoing, the Board resolves all reasonable doubt in the Veteran’s favor (as required by law) and concludes that the evidence supports a finding that the Veteran’s service-connected disabilities in combination preclude him from securing or following substantially gainful employment and have done so for the entire period on appeal. Therefore, the criteria for establishing entitlement to TDIU are met. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel