Citation Nr: A19001565 Decision Date: 09/25/19 Archive Date: 09/25/19 DOCKET NO. 190419-9695 DATE: September 25, 2019 ORDER Entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) with polysubstance abuse is denied. FINDING OF FACT For the entire period covered by this claim, the impact and severity of the Veteran’s PTSD with polysubstance abuse symptoms have most nearly approximated that of occupational and social impairment with deficiencies in most areas, due to such symptoms as: hypervigilance and exaggerated startle response, anxiousness, social isolation, irritability and temper, poor self-esteem, impatience, insomnia and nightmares, intrusive memories, avoidance behaviors, persistent negative emotional state, markedly diminished interest or participation in activities, feelings of detachment or estrangement from others, sadness, poor motivation, and poor concentration. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) with polysubstance abuse have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3. 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1980 to October 1994. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. In an October 2017 rating decision the regional office (RO) continued the previously assigned 50 percent rating for service-connected post-traumatic stress disorder with polysubstance abuse. The Veteran filed a notice of disagreement in September 2018. In November 2018 the Veteran opted-into the RAMP process and requested a higher-level review of his claim. As part of the higher-level review, the Veteran requested an informal conference which was performed in February 2019. The RO conducted a higher-level review, and in a February 2019 rating decision increased the rating to 70 percent effective April 15, 2016, the date on which the Veteran filed his most recent claim for increase. The Veteran submitted a notice of disagreement in April 2019 and requested the Direct Review lane. 1. Entitlement to a rating in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD) with polysubstance abuse. The Veteran asserts that his PTSD is worse than the current evaluation reflects and requests the assignment of a 100 percent schedular rating (see April 2016 claim and September 2018 notice of disagreement). The Veteran asserts that his PTSD makes it difficult to maintain consistent employment and makes it difficult to live a “normal, stable” life without medication (see September 2018 notice of disagreement and April 2019 notice of disagreement). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA 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, VA 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). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. Disability ratings for PTSD are contained in the general formula for rating mental disorders under 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. "Thus, if [the applicable diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Because the rating criteria under DC 9411 explicitly contemplate the effect of medication, the effect of any medication the Veteran is taking on the severity of his symptoms will not be discounted (i.e., the Veteran’s exhibited symptoms will be the basis of the evaluation, not what the symptoms would be in absence of medication). Additionally, when a Veteran has service-connected and non-service-connected disabilities and it is not possible to separate the effects of each, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In May 2016 the Veteran was seen for medical treatment at a VA facility. The Veteran reported living alone. The Veteran denied wanting to harm himself or others. The Veteran was assessed as negative for suicidal ideation, homicidal ideation, auditory hallucinations, feelings of persecution, anxiety, anhedonia, or episodes of mania. The Veteran was assessed as having PTSD and depression. Later in May 2016 the Veteran reported continuing PTSD symptoms but said he felt better than he had in the past. The Veteran reported that he had been sleeping better. The Veteran was assessed as being hypomanic. The Veteran stated that he stays very active but does almost everything alone and does very little socializing. The Veteran denied wanting to harm himself or others. In addition to PTSD, the Veteran was assessed as having bipolar II disorder. The Veteran was seen for a VA examination for his service-connected PTSD in June 2016. The Veteran reported hypervigilance and exaggerated startle response, anxiousness, social isolation, having a quick temper, poor self-esteem, being impatient and coming off as abrasive, insomnia and nightmares, intrusive memories, avoidance (including movies featuring the military or gore), persistent negative emotional state, markedly diminished interest or participation in activities, feelings of detachment or estrangement from others, sadness, poor motivation, poor concentration, and difficulty functioning. The Veteran reported not leaving the house on bad days, which usually happens after he has nightmares. The Veteran reported having panic attacks about 3 times a week. The Veteran reported that he is socially isolated and has few friends, but he tries to get out more and enjoys riding his bike. The Veteran reported being unemployed since 2007 when he lost his job due to not getting along with others. The Veteran stated that he goes to group and individual therapy for his PTSD. The Veteran stated that he would have problems with going to work because of his PTSD, based in large part because in the past he had significant problems with coworkers. The Veteran sated that everything he did would offend people and that he would become irritable and impatient. The Veteran stated that he was divorced because he had interpersonal problems with his wife due to his PTSD. The Veteran denied suicidal or homicidal ideation. The examiner stated that the Veteran also had alcohol use disorder, but that the Veteran had been sober for the past two months. The examiner stated that the Veteran’s alcohol use disorder was due to trying to cope with his PTSD. The examiner assessed the Veteran as having the following PTSD symptoms: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including in a work or worklike setting). The examiner stated that the Veteran appeared to be worse since the last exam, and about once or twice a month has bad days where he has to call the doctor. The examiner assessed the Veteran’s PTSD as productive of occupational and social impairment with reduced reliability and productivity. August 2016 VA psychiatric records reflect that the Veteran reported that he was doing well and on medication for his PTSD. The Veteran reported living alone and being currently retired due to having been burned out and having a bout of cancer that was currently in remission. The Veteran stated that he was doing well with his PTSD and that medication was helping, however he also reported that he was still struggling with anger and irritability and admitted that he still continued to isolate. The medical noted reflect that the doctor though that the veteran had bipolar II disorder. The Veteran stated that he was drinking very little. The Veteran stated his mood was okay and featured roughly equal numbers of good days and bad days. The Veteran stated that on bad days he tried to look at life as glass half full. The Veteran stated that his sleep was a little better but he stated that he had nightmares about 3 times per week. The Veteran stated that his concentration was better but he continued to have problems with distraction. The Veteran reported better motivation. The Veteran denied suicidal or homicidal ideation, although he acknowledged suicidal ideation off-and-on in the past. The Veteran endorsed hypervigilance and exaggerated startle response. The Veteran stated that in the past he had regular flashbacks, but that he hadn’t had one in some time. On mental status exam the Veteran’s: appearance was good (well-groomed and cooperative), speech was normal and talkative, mood was euthymic with congruent affect, thought process logical and goal-directed, thought content did not involve suicidal ideation, and insight and judgment were good. In September 2016 the Veteran reported ongoing PTSD symptoms but said that he felt better than he had in the past. The Veteran report a situation (unspecified) wherein he felt that he handled in much better than he would have in the past (i.e., he handled his anger better). The Veteran reported that he was continuing to sleep better. The Veteran stated that he stayed active but did almost everything alone and did not like socializing. The Veteran denied wanting to hurt himself or others. October 2016 VA psychiatric records reflect that the Veteran carried diagnoses of PTSD, major depressive (MDD), and bipolar II disorder. The Veteran reported living alone and being currently retired due to various medical conditions such as back pain and a prior bout of cancer that was in remission. The Veteran stated that he was divorced and had two step-children with whom he had a distant relationship. The Veteran stated that he was doing well with his PTSD and that medication was helping, however he also reported that he was still struggling with anger and irritability and admitted that he still continued to isolate. The Veteran stated that he had been having less nightmares. The Veteran stated sometimes feeling helpless, guilty, depression, irritable (with temper outbursts), frustrated, worried, and anxious. However, the Veteran stated that since starting medication he was able to relax better. The Veteran stated that he avoided crowds, experienced hypervigilance and was easily startled, and felt detached from others. The Veteran denied feelings of hopelessness, worthlessness, suicidal or homicidal ideation, visual or auditory hallucinations, paranoia, or obsessions or rituals. The Veteran endorsed going through periods where he experienced decreased need for sleep and had increased: energy, goal-directed behavior, hypersexual behavior, grandiosity, racing thoughts, and spending. On mental status exam the Veteran’s: appearance was good (well-groomed), behavior was calm and cooperative, speech was normal and talkative, mood was okay with a euthymic affect, thought process was linear and coherent, thought content did not involve suicidal or homicidal ideation or auditory or visual hallucination, insight and judgment were fair, and orientation (to person, place, and time) was normal. Additional October 2016 VA treatment records reflect that the Veteran reported that his mood had been better and more stable. The Veteran denied suicidal or homicidal ideation, visual or auditory hallucinations, paranoia, or energy disturbances. The Veteran was clinically assessed as having normal speech and his thought process that was linear and coherent. In November 2016 the veteran reported continuing PTSD symptoms but overall felt better than he had in the past. The Veteran stated that he was no longer as reactive or easily upset and stated that because he understood his PTSD symptoms better he could control himself better. The Veteran stated that while he still tended to isolate and he did not develop any close friendships, he was interacting a little more. The Veteran reported that he stayed active but did almost everything alone and did not like socializing. The Veteran expressed no desire to harm himself or others. In January 2017 the Veteran reported that he was feeling well and that his medication was helpful. The Veteran continued to report struggling with anger and irritability and admitted that he continued to isolate himself. The Veteran stated that his sleep had improved and he had been having less nightmares. The Veteran did not express any suicidal or homicidal ideation and denied auditory or visual hallucinations. In March 2017 the Veteran reported that he was much improved from when he first started PTSD treatment. The Veteran reported overall improvement in PTSD, depressive, and hypomanic symptoms. The Veteran stated that he had a decrease in nightmares, but still would sometimes feel helpless, guilty, depressed, irritable (with temper outbursts), easily frustrated, anxious/worried, easily startled/hypervigilant, and detached from others. The Veteran also reported avoiding crowds and a history of mood swings. The Veteran reported experiencing alternating periods of depression and mania (spending sprees, decreased need for sleep, racing thoughts, hypersexual behavior, grandiosity, etc.). The Veteran denied feelings of hopelessness, worthlessness, suicidal or homicidal ideation, visual or auditory hallucinations, paranoia, rituals or obsessions. On examination the Veteran was: alert and oriented fully, well-groomed, calm and cooperative, speaking normally, feeling slightly manic with a slightly elevated affect, linear and coherent in thought process, and exhibiting fair insight and judgment. In May 2017 the Veteran was seen for PTSD treatment and reported that he was feeling well. The Veteran continued to report struggling with anger and irritability and admitted that he continued to isolate himself. The examiner noted that the Veteran’s speech was normal, his thoughts were linear and coherent, and he was calm and cooperative. In August 2017 the Veteran reported feeling improved PTSD symptoms. The Veteran stated that his nightmares had decreased. The Veteran reported feeling at times slight helpless, slightly guilty, depressed, irritable/easily frustrated, a little worried/anxious, hypervigilant/easily startled, and detached from others. The Veteran reported less avoidance of crowds. The Veteran endorsed fleeting thoughts that he might be better off “not being here” but denied having a concrete urge, plan, or intent. The Veteran reported periods of increased spending, decreased sleep, increased, energy, increased goal-directed behavior, hypersexual behavior, and grandiosity, alternating with periods of depression. The Veteran denied feeling worthless, suicidal or homicidal ideation, auditory or visual hallucinations, paranoia, rituals, obsessions, energy disturbances, or temper outbursts. On examination the Veteran was alert and fully oriented, had intact memory, was well-groomed, was calm and cooperative, exhibited normal speech, had a slightly energetic mood with a slightly elevated affect, had a linear and coherent thought process, and had fair insight and judgment. The Veteran has been unemployed throughout the appeal period; at several medical appointments the Veteran reported the same history, namely that he had been working at a medical facility and rose to a supervisory position but retired due to being burned out and had not returned to work after a 2009 cancer diagnosis. The weight of the evidence of record does not reflect that the Veteran’s overall PTSD disability picture with polysubstance abuse is productive of total occupational and social impairment (even when any psychological symptoms caused by the Veteran’s non-service-connected bipolar II disorder are evaluated as solely due to the Veteran’s service-connected PTSD consistent with Mittleider). While the Veteran has not been employed since approximately 2007, the weight of the evidence does not suggest that the Veteran specifically retired due solely to his to his PTSD and associated symptoms. The Board acknowledges that the Veteran has reported at times that that his difficulties with PTSD led to his retirement and inability to work (see April 2016 claim, June 2016 VA examination, and September 2018 notice of disagreement). However, the Veteran has also alternatively reported on many occasions that he retired due to feeling burned out at work, and he reported that he had not tried to gain employment since being diagnosed with cancer (thus suggesting that his cancer diagnosis is a factor in him not attempting to go back to work). Furthermore, while the Veteran reported at the June 2016 VA examination that he felt his PTSD symptoms would make him unable to work, the examiner assessed his symptoms as being productive of occupational and social impairment causing reduced reliability and productivity (i.e., the examiner did not think that the Veteran’s PTSD would result in total occupational impairment). Additionally, medical treatment records since the Veteran’s 2016 VA examination reflect that the Veteran has seen an improvement in his PTSD symptoms since that VA examination, in large part due to the ameliorative affects of medicine and continued counseling and treatment. As noted above, the ameliorative affects of the Veteran’s medication will not be discounted because they are contemplated by the rating criteria. 38 C.F.R. § 4.130, DC 9411; see McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Furthermore, while the Veteran has reported problems with anger and irritability that would make working in social environments difficult, the Veteran would not necessarily be precluded from working in job environments that require less social interaction and would allow the Veteran to work in more isolated manner. The Veteran has been consistent in reporting that he has a tendency to self-isolate and prefers to be alone, which raises the possibility that his PTSD is productive of total social impairment, however even if this is the case the overall disability picture still does not meet the criteria for a 100 percent rating for PTSD because he is not totally occupationally impaired. (Continued on the next page)   Additionally, the Veteran does not exhibit most, if any, of the symptoms contemplated by the 100 percent criteria. The Veteran’s thought process and communication were assessed as good on several mental status exams throughout the appeal period. The Veteran has consistently denied delusions or hallucinations. While the Veteran has reported grossly inappropriate behavior in the past (DIU’s and domestic violence) (see September 2018 notice of disagreement), the evidence of record does not reflect that the Veteran has exhibited these behaviors or any other grossly inappropriate behavior patterns throughout the period on appeal. The Veteran denied suicidal and/or homicidal ideation at all medical appointments throughout the appeal period which demonstrates that he is not a persistent danger of hurting himself or others. At his June 2016 VA examination the Veteran reported having bad days that rendered him unable to leave the house which may suggest he had intermittent inability to perform the activities of daily living, however subsequently the Veteran’s overall disability picture has improved and he has not reported having bad days to such an extent. Further, the Veteran’s appearance and hygiene have never been noted as deficient in any way on mental status examination. The Veteran has never been assessed on mental status examinations as being disoriented to time or place. The Veteran has not reported or been assessed as having any memory difficulties. Accordingly, the weight of the evidence does not reflect that the Veteran’s PTSD with polysubstance abuse (to include any overlapping and inseparable bipolar II disorder symptoms) has been productive of total occupational and social impairment at any time during the period covered by this claim. As such, entitlement to a rating in excess of 70 percent for the service-connected PTSD with polysubstance abuse is denied. L.B. Cryan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Macchiaroli, Attorney Advisor 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.