Citation Nr: 20022533 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-62 211A DATE: April 1, 2020 ORDER Entitlement to an increased evaluation, in excess of 70 percent, for posttraumatic stress disorder (PTSD) with alcohol abuse in remission prior to October 30, 2017 is denied. FINDING OF FACT Prior to October 30, 2017, the Veteran’s service-connected PTSD with alcohol abuse in remission did not result in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for service-connected PTSD with alcohol abuse in remission prior to October 30, 2017 have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served as a member of the United States Marine Corps with active duty service from April 1968 to October 1969. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated May 2017, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, a RO continued an evaluation of post-traumatic stress disorder with alcohol abuse in remission, which was rated as 70 percent disabling. In a May 2019 rating decision, the RO increased the assigned rating for service-connected PTSD with alcohol abuse in remission to 100 percent from October 30, 2017. Accordingly, the Board’s discussion herein is limited to the question of entitlement to a rating for service-connected PTSD with alcohol abuse in remission prior to October 30, 2017. Increased Rating A disability rating is determined by applying VA’s 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as “staged ratings,” - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria authorize the Veteran’s currently assigned 70 percent rating 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. Id. A 100 percent rating is warranted for 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. Id. 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. 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. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). Entitlement to an increased evaluation in excess of 70 percent for PTSD with alcohol abuse in remission prior to October 30, 2017. Historically, the Veteran was service connection for PTSD with alcohol abuse in remission in a May 2011 rating decision, which assigned a 30 percent rating from May 28, 2010. A February 2015 rating decision increased the assigned rating for PTSD to 70 percent from August 22, 2014. The Veteran filed a claim of entitlement to an increased rating for PTSD in October 2016. His claim was denied in a May 2017 rating decision. The Veteran disagreed with the denial and this appeal follows. As indicated above, a March 2019 rating decision increased the assigned rating for PTSD to 100 percent from October 30, 2017. Therefore, the Board has herein considered whether a rating in excess of 70 percent is warranted for the Veteran’s PTSD prior to October 30, 2017. As noted above, the Veteran filed his increased rating claim in October 2016. During the one year "look back period" prior to the filing of the claim, a VA neuropsychological consultation dated in October 2015 documented the Veteran’s report of increased irritability and marital discord. His spouse described the Veteran’s increasing short term memory loss over the past year and a half. The Veteran has trouble recalling names and repeating himself. He reported that his spouse took over the management of their finances more than one year ago after mistakes including missed payments. The Veteran denied suicidal and homicidal ideation. He completes all activities of daily living independently. The treatment provider stated that the Veteran reports minimal levels of depression and anxiety symptoms. He is easily irritated, quick to anger, and blames his spouse. The treatment provider diagnosed the Veteran with mild cognitive disorder (executive dysfunction). The treatment provider explained that executive dysfunction syndrome “may manifest in a constellation of problems in every day life including inappropriate social behavior; problems with decision-making and showing good judgment; difficulties with devising; following, and shifting plans; problems with organization; distractibility; and difficulties in situations involving various aspects of memory.” In a February 2017 VA examination, the Veteran was found to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran explained that he married his wife 47 years ago and they had 3 adult children. The Veteran reported he had a good relationship with his spouse and children. He and his spouse resided in a home that he inherited. The Veteran was employed by various phone companies for a period of approximately 37 years. He retired in 2003. He then drove a school bus for a period of three years, on a part-time basis. At the time of his examination, he utilized a myriad of medications for treatment of various physical conditions and had been utilizing Trazodone for the past several years. This medication assisted him with falling asleep, but he stated he did not remain at rest more than approximately four hours. He experienced frequent nightmares and stated that he had daytime thoughts of search and destroy. He denied history of suicide attempts, individual therapy or inpatient mental health treatment. He received some group therapy for about a year around 2015. He stated that he normally did not talk to anybody. He reported that he experienced symptoms including depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was capable of managing his financial affairs. Private medical treatment records prior to October 2017 recorded numerous mental health notes for the Veteran’s PTSD. The Veteran has submitted extensive CAPRI medical records regarding his PTSD symptoms and treatment. The Veteran’s PTSD is manifested by symptoms including short-term memory loss, inability to keep up with finances, increased repetition of phrases, and trouble sleeping. No thoughts of suicide, attempted suicide, or hallucinations were reported. The Veteran was also prescribed medication as part of his PTSD treatment. As addressed above, in order for a Veteran to be eligible for a 100 percent rating, he must have 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. 38 C.F.R. § 4.130. The February 2017 mental status examination noted that the Veteran, while experiencing depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, denied any suicidal ideations intent or plan and did not have any homicidal ideations. Similarly, there was no mania, and he had no active psychotic symptoms. With respect to social interactions, total social impairment as a result of his PTSD is not shown. At the time of the February 2017 VA examination, the Veteran noted that he spent time with his spouse of 37 years and his three adult children. He also reported that he had a good relationship with them. With respect to occupational impairment, the VA examiner reported that the Veteran had been employed for various phone companies for a period of approximately 37 years. He retired in 2003. He then drove a school bus for a period of three years, on a part-time basis. Therefore, while the Veteran is able to hold a job and is able to maintain relationships with people, he does not have total occupational and social impairment as contemplated by a 100 percent disability rating prior to October 30, 2017. The medical evidence demonstrates that the Veteran’s social and occupational functioning is limited by several PTSD symptoms – depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control - but those symptoms are specifically listed in the criteria for the rating of 70 percent prior to October 30, 2017. The weight of the evidence is against a finding that the Veteran has total social and occupational impairment as contemplated by a 100 percent schedular evaluation. Accordingly, his request for a schedular rating higher than 70 percent for service-connected PTSD with alcohol abuse in remission prior to October 30, 2017 is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.