Citation Nr: 19167828 Decision Date: 09/03/19 Archive Date: 09/03/19 DOCKET NO. 15-42 171 DATE: September 3, 2019 ORDER A rating for PTSD with alcohol abuse at 70 percent, but not higher, is granted from April 1, 2016, but not earlier, subject to the laws and regulations governing the awards of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Following the Veteran’s death due to a liver cirrhosis resulting from his service-connected PTSD with alcohol abuse, the Appellant has been properly substituted to pursue the Veteran’s appeal pending at the time of his death. 2. The evidence does not show that the severity of the Veteran’s PTSD with alcohol abuse has caused a functional impairment most closely approximating the deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, for any distinct time period prior to the Veteran’s hospitalization from February 25 to March 31, 2016; nor does the evidence show that his PTSD caused a total social impairment at any time during the pendency of this appeal. 3. Prior to his death, the Veteran was unable obtain or maintain substantially gainful employment as a result of his service connected disabilities. CONCLUSIONS OF LAW 1. The rating criteria for PTSD with alcohol abuse at 70 percent were met on April 1, 2016, but not earlier; a rating in excess of 50 percent prior to April 1, 2016, apart from the period of hospitalization, and thereafter in excess of 70 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a total disability rating due to individual unemployability were met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from December 1968 to July 1970, to include his distinguished service in the Republic of Vietnam. In January 2010, the Regional Office (RO) granted service connection for PTSD with alcohol abuse secondary to PTSD, effectuated from the date of his claim for service connection in October 2009 and initially rated at 30 percent. In June 2010, the Veteran disagreed with the assigned rating. In March 2011, the RO granted a rating increase from 30 to 50 percent, effective from the date of the original claim. In November 2012, the Veteran sought a rating increase for his mental disability. In January 2014, VA assessed the severity levels of his PTSD with alcohol abuse and denied a rating in excess of 50 percent. In March 2014, the Veteran appealed the assigned rating. In May 2016, the RO granted a temporary total disability rating from February 25, 2016, to March 31, 2016, due to the Veteran’s hospitalization for his PTSD with alcohol abuse and resumed a rating at 50 percent as of April 1, 2016. Then, the RO granted the rating increase from 50 to 70 percent as of April 13, 2016, the date of the post-hospitalization VA examination. The Veteran appealed those ratings. Regretfully, the Veteran died on December [Redacted], 2018. In February 2019, his surviving spouse (Appellant) filed her request for substitution upon the Veteran’s death to pursue his pending appeal. The RO granted her request in August 2019. Of preliminary note, a Notice of Disagreement received in June 2016 reflects the Veteran’s contention that the rating decision never addressed his increased rating claim for hearing loss. Along the same lines, the Veteran’s representative at the time submitted the statements (VA received in June 2016) asserting that the Veteran had a serious hearing problem which has not been addressed in the rating decision. Despite these assertions, the record does not reflect any unadjudicated claims for service-connected hearing loss. Rather, the record reflects correspondence (VA received in September and October 2015), following which VA issued a notice advising the Veteran that an increased rating claim must be filed using a proper form. In June 2016, VA received the proper claim for a TDIU rating, which the RO also treated as the Veteran’s request for an increased rating for his hearing loss. In February 2017, the RO issued a rating decision denying a compensable rating for hearing loss and a TDIU rating, while advising the Veteran of his appeal rights. The appeal starts with a Notice of Disagreement which must be filed within one year after the rating decision. See 38 U.S.C. § 7105(b)(1). Otherwise, the rating action becomes final. See 38 C.F.R. § 20.1103. The evidence of record does not show that the Veteran ever appealed the February 2017 rating decision as to the hearing loss or TDIU, which thus had become final. As such, the only remaining issue in this appeal is the rating increase claim for PTSD with alcohol abuse, along with the TDIU claim that is linked to it. In March 2019, the Appellant testified at a Board hearing. The hearing transcript is associated with her claims file. She is now seeking a rating for the Veteran’s PTSD with alcohol abuse in excess of 50 percent prior to April 13, 2016, and henceforth in excess of 70 percent. All mental disabilities, to include PTSD with alcohol abuse, are rated under the General Rating Formula for Mental Disorders. Under the Formula, a rating at 50 percent is warranted when PTSD causes 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. The next higher rating at 70 percent is warranted when the evidence shows that PTSD causes 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. Id. The next higher, total disability rating is warranted when the evidence shows that PTSD symptomatology causes total occupational and total social impairment. Id. Applying the Formula to the circumstances of a particular veteran’s case is never mechanical. Neither a presence nor an absence of any symptom is dispositive. Rather, the focus of the Board’s inquiry is placed on the severity, frequency, and duration of the present symptoms, and the periods of remissions and relapses, so as to aid the Board’s evaluation of an overall disability picture. See 38 C.F.R. § 4.126. The ultimate gauge for assigning the most appropriate rating for a mental disability is an overall severity level of the social and occupational impairment caused by the symptoms associated with such a disability. Id. An increased rating may be granted only when the evidence shows that the severity levels of the disability most closely approximate the regulatory criteria for a higher rating. See 38 C.F.R. § 4.7. Otherwise, a lower rating must be assigned. Id. In cases suggesting a fluctuating symptomatology resulting in distinct levels of severity during distinct periods, the Board may consider the so-called “staged” ratings, meaning an evaluation as supported by the factual findings that may warrant different ratings for different periods during the pendency of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, there are two such periods, namely, a period prior to April 13, 2016, the date of a rating increase from 50 to 70 percent, and the period thereafter. Upon considering all lay and medical evidence of record, the Board finds that the evidence of record does not show that a rating increase in excess of 50 percent for the Veteran’s PTSD with alcohol abuse prior to April 2016 is warranted. In November 2012, VA received a letter from the Veteran’s representative asserting that the Veteran had a relapse and was self-medicating with alcohol due to PTSD. At the same time, VA received the Veteran’s mental health counseling records from October 2009 to November 2012. The initial intake notes reflect that the Veteran reported having bad dreams and nightmares of Vietnam, quite frequent intrusive thoughts, and panic attacks in which he wanted to jump out of his skin. He also reported that he used to have issues with anger and irritability at work, but not so much now. These reported symptoms appear to have remained fairly stable through September 2012, when the Veteran had a brief relapse of a decade-long sobriety and was taken to the ER. At the subsequent counseling meetings, the Veteran reported retiring from his job in October 2012 and feeling much better without all the work-related stress that, in his opinion, had triggered his relapse. Such frequency, severity, and intensity of the reported symptoms, to include the presence of panic attacks more than once a week, chronic sleep impairment, anger issues, constricted affect, and anxious mood, most closely approximate the criteria for a rating at 50 percent. Along the same lines, a January 2014 VA examination report reflects that the VA examiner reviewed the Veteran’s claims file and his treatment history, interviewed the Veteran in-person, and considered all his reported symptomatology since the date of the initial intake in October 2009, noting recurrent nightmares, depressed mood, anger issues, and a brief relapse in 2012. The report further reflects that the Veteran was dressed appropriately. His speech tone and rate were within normal range. His thought process was goal-directed and logical. Both his attention and concentration were also within the normal limits. He denied any suicidal thoughts or plans, and no indicia of hallucinations or delusions was reported or observed at the examination. Of note, these observations alone strongly suggest that the Veteran’s overall functional impairment resulting from his PTSD with alcohol abuse was not any more severe than social and occupational impairment with reduced reliability and productivity, as contemplated by a 50 percent rating. This is in contrast to a more severe impairment in most areas, as is required for the next higher evaluation at 70 percent. Further, upon considering the comprehensive data, the examiner opined that the Veteran’s PTSD with alcohol abuse resulted in an overall occupational and social impairment with reduced reliability which is mirrored in the regulatory criteria for a rating at 50 percent. Such a level of functional impairment is consistent with the Veteran’s reports of symptomatology and its effects on his life. That is, after reviewing the Veteran’s records and meeting with him, the examiner found that the Veteran’s psychiatric symptomatology was most commensurate with the criteria associated with a 50 percent rating. Further, the RCS group therapy notes from April 2013 to January 2014, and the VA treatment records and progress notes through early 2016, do not suggest the overall levels of impairment any more severe than those contemplated by the rating criteria for 50 percent. In sum, this evidence reflects the Veteran’s reports of continuing symptoms, the intermittent relapses, and his brief visits to the ER, which show his continued need for medication and therapy to effective cope with the symptomatology associated with his PTSD. During the period prior to April 2016, aside from hospitalizations, the evidence of record does suggest some intermittent worsening of the Veteran’s PTSD with alcohol abuse, to include his three brief relapses in a span of a decade and lasting no more than one month at a time and resulting in three corresponding one-day visits to the ER about two years apart in September 2012, August 2014, and January 2016; and a four-day hospitalization from April 30 to May 3, 2014, over a seven-year period. Apart from these events, the Veteran’s reports of symptoms and the clinical assessment reports show that the disability picture over a seven-year period prior to April 2016 has remained fairly stable and most closely approximates the rating for 50 percent, but not higher. The evidence of a need for continued medication and therapy supports a finding that the overall disability picture was fairly stable, until the major relapse in early 2016, when the Veteran was hospitalized for more than 21 days. Prior to this hospitalization, however, the symptoms are not indicative of social and occupational impairment in most functional areas, as set forth in the regulations. Following the intake in October 2009, the records do not reflect any reports of any new symptomatology. Nether the Veteran nor the Appellant have argued otherwise. Rather, they have asserted a general worsening of the disability. Of note, the rating criteria generally contemplates an overall approximation on a wide spectrum of fluctuating symptoms rather than any fixed criterion. As noted, the ultimate gauge for rating mental disabilities is an overall functional impairment commensurate with the severity levels of social and occupational impairment as contemplated by the rating schedule. Such an assessment requires a clinical assessment. As discussed, both the Veteran’s and clinician’s reports that the symptomatology had resulted in the overall severity levels of social and occupational impairment most closely approximating the social and occupational impairment with reduce reliability and productivity, which is the rating criteria for 50 percent. Also, as discussed, the evidence does not show that it is at least as likely as not that the severity levels of his social and occupational impairment were any more severe than social and occupational impairment warranting a rating at 50 percent. While many factors beyond the severity levels are relevant to the Board’s understanding of an overall disability picture, neither the Veteran’s occasional relapses, nor his brief visits to the ER, nor his four-day hospital stay, nor his need for continuous medication and therapy to cope with his symptoms warrant a rating in excess of 50 percent prior to April 2016. The Veteran himself reported essentially the same symptomatology, along with fairly consistent severity, frequency, and duration, apart for his relapses in 2012 and 2014, which he characterized as “little slips” in contrast to “falling off a band wagon” in 2016. In February 25, 2016, the Veteran was hospitalized for more than 21 days due his PTSD with alcohol abuse. For this period ending on March 31, 2016, the Veteran was assigned a temporary total disability rating. As of April 1, 2016, the first day of the month after the Veteran’s release from the hospital, the 50-percent rating was resumed. Then, VA re-assessed the severity levels of his PTSD with alcohol abuse and granted a rating increase from 50 to 70 percent, as of the date of the first post-hospitalization examination on April 13, 2016. The Board, however, believes that the Veteran’s symptoms did not significantly worsened in the few days between his hospital discharge and the examination so as to justify a staging of the ratings. Rather, the rating at 70 percent should have been assigned as of the date of his release from the hospital. Accordingly, a rating at 70 percent is warranted from April 1, 2016, the day after a temporary total disability rating has ran out, but not earlier. Therefore, a rating in excess of 50 percent prior to April 1, 2016, is denied. A rating at 70 percent is granted from April 1, 2016. Apart from the period of hospitalization for over 21 days, a rating in excess of 70 percent for the Veteran’s PTSD with alcohol abuse is not warranted at any time during the pendency of this appeal. The next higher, total disability rating for PTSD with alcohol abuse is warranted only when the evidence shows, among other things, a total social impairment. In this case, the evidence of record shows that the Veteran had two step children and grandchildren with whom he had good relationships. The evidence further reflects the Veteran’s reports of being happily married to his second wife with whom he had continuously resided throughout the course of this appeal, until his death. As such, the evidence of record does not show a total social impairment that is a fundamental legal requirement for a total rating of a mental disability. While the Veteran’s social functioning may not have been without flaw, a 70 percent rating contemplates an inability to establish and maintain effective relationships. Thus, apart from the period of hospitalization, an award of the rating for PTSD with alcohol abuse in excess of 70 percent is not warranted in this appeal. Despite the Board’s finding that the rating for PTSD with alcohol abuse in excess of 70 percent is not warranted for any time period covered in this appeal, apart from the period of hospitalization, and notwithstanding the unappealed previously denied claim for a TIDU rating, a review of the evidence of record has suggested that the Veteran’s PTSD with alcohol abuse may have resulted in his inability to perform the basic work functions. Of particular note is the Board’s hearing transcript reflecting the Appellant’s statements under oath that the Veteran in his later years was no longer able to take care of his basic necessities. She explains that the Veteran would pick up his phone to change the TV channels, or he would wander, or he would fall, or he would not remember; he had difficulty caring for himself, to include his daily needs and his daily bathing. These statements are uncontradicted by any evidence of record. Considering these statements in light of our case law setting a precedent in that a veteran who seeks an increased rating is presumed to seek the maximum allowable benefit, to include a TDIU rating that is reasonably raised by the record, the Board finds that the Appellant’s testimony has reasonably raised the TIDU issue and thus take jurisdiction over the matter. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU rating shall be granted to a veteran who is unable to secure and maintain gainful employment due to a service-connected disability, be it physical or mental. 38 C.F.R. § 4.16(a). Being unable to maintain a substantially gainful occupation is not the same as being totally disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Accordingly, a total disability rating may be assigned even where the combined rating is less than total, if the evidence shows an impairment of mind and/or body rendering it impossible for an average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. The fact that the Veteran has voluntarily retired in October 2012 at the age of 63 is not dispositive. Rather, the ultimate question before the Board is whether the Veteran possessed the requisite mental and/or physical abilities to perform the basic work functions. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the evidence of record shows that the Veteran did not have such abilities. His VA treatment records reflect an August 2015 diagnosis of hepatic encephalopathy due to the Veteran’s liver cirrhosis from his alcohol abuse. One of the effects of his hepatic encephalopathy with neurological abnormalities eventually impaired his cognitive functioning. The Veteran’s VA treatment records reflect at least one VA medical opinion that the Veteran has difficulty in making decisions, due to his hepatic encephalopathy. In considering this medical evidence coupled with the Appellant’s statements discussed above, the Board finds that it is more likely than not that the Veteran has become incapable of obtaining and maintaining a gainful occupation, due to his cognitive impairment resulting from his liver cirrhosis caused by his alcohol abuse associated with his PTSD. As such, a TDIU rating is warranted in this case. (Continued on the next page)   Therefore, a TDIU rating is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Bardin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.