Citation Nr: 21001081 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-00 750 DATE: January 7, 2021 ORDER Prior to February 28, 2019, an initial evaluation of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) with alcohol use disorder, previously rated as a depressive disorder, not otherwise specified (NOS) and previously evaluated as an anxiety disorder, is granted. Since February 28, 2019, an evaluation higher than 50 percent for PTSD with alcohol use disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s PTSD with alcohol use disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. Prior to February 28, 2019, an initial rating of 50 percent, but no higher, is warranted for PTSD with alcohol use disorder. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. Since February 28, 2019, the criteria for a disability rating higher than 50 percent for PTSD with alcohol use disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1970, and is the recipient of numerous awards and commendations, including a Purple Heart Medal. These matters come to the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before a Veterans Law Judge (VLJ) in July 2015. A transcript of that hearing is of record and associated with the claims file. However, the VLJ who presided over the hearing is no longer a VLJ at the Board. In an October 2020 letter, the Veteran was provided with the opportunity to request a new hearing; however, he did not respond that he wanted an additional hearing. He was notified in the letter that if he did not respond within 30 days, of the date of the letter, the Board will assume he does not want another hearing and proceed accordingly. As such, the Board may proceed with adjudication of the appeal. The issues listed above were previously before the Board in February 2016 and May 2018 when they were remanded for additional development. An August 2020 supplemental statement of the case was most recently issued and the claims are once again before the Board. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating in excess of 30 percent for PTSD with alcohol use disorder, prior to February 28, 2019. 2. Entitlement to a rating in excess of 50 percent for PTSD with alcohol use disorder, since February 28, 2019. The Veteran claims that his service-connected PTSD with alcohol use disorder is more severe than his initial 30 percent rating prior to February 28, 2019, and 50 percent since February 28, 2019. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 10 percent rating is warranted when there is 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 continuous medication. DC 9411. A rating of 30 percent is assigned when there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent is assigned 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; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assigned where there is 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 schedular evaluation contemplates 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. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). Effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. A review of the evidence reflects that a rating of 50 percent is warranted throughout the appeal period. Historically, a July 2011 rating decision granted service connection and awarded a 30 percent rating for an anxiety disorder, effective October 4, 2010. A May 2019 rating decision increased that rating from 30 percent to 50 percent, effective February 28, 2019, the date of the VA examination showing a worsening of his PTSD. Turning to the merits of the claim, treatment records include an April 2010 Mental Status Examination conducted in connection with a claim for Social Security Disability benefits. The examiner noted that the Veteran had been divorced three times. He was noted to be casually attired and groomed and was alert and oriented. It was noted that there was no evidence of hallucinations, illusions, delusions or paranoid system of thinking. His speech was described as fluent. He was logical, coherent, and relevant. His insight was described as limited and judgment was within normal limits. His mood was described as slightly anxious. He denied homicidal and suicidal ideation or intent. His affect was constricted. In an attached functional limitations evaluation, it was noted that the Veteran had difficulties in maintaining social functioning. VA treatment records in May 2009 reflect that the Veteran preferred to be isolated. In a November 2010 stressor statement, the Veteran reported persistent trouble with DUIs and an inability to hold a job for very long. He reported an inability to have relationships or marriage for very long and an inability to even have a relationship with his children. In a November 2011 statement, the Veteran reported that his PTSD makes it difficult to get along with other employees. In an October 2015 statement the Veteran reported that he cannot sleep in the dark and leaves the lights on. He reported locking the doors and stacking empty soda cans behind them. He reported frequent panic attacks. He reported that his memory seems to be affected and he forgets things from one minute to the next. The Veteran stated that he has a problem motivating himself to do anything and prefers to be alone. He reported not being able to be comfortable around anyone and especially crowds. An October 2015 buddy statement, submitted by the Veteran sister, noted that the Veteran wakes up fighting if he is woken up and has no energy and sleeps a lot. She reported that the Veteran has a temper and it does not take much to make him mad. The Veteran’s sister stated that the Veteran does not want to be around anyone, including family. In a March 2011 VA examination, the Veteran reported no social life and no friends, with some contact with family. His mood was described as dysphoric and tearful at times. He was oriented to person, time and place. No suicidal or homicidal thoughts were noted. It was noted that the Veteran had good impulse control. His memory was noted to be normal. The examiner noted that the Veteran’s PTSD symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The examiner noted that his primary symptoms of avoidance, particularly avoidance of affect, keep him socially withdrawn and unable to fully engage in life. At a November 2011 VA examination, the examiner noted that although a mental condition had been formally diagnosed, symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. However, the examiner then noted further in the report that the Veteran does not participate in any social activities. His affect was noted to be constricted. He was oriented to person, time and place. No homicidal thoughts or suicidal thoughts were observed. At an August 2013 VA examination, the VA examiner noted that the Veteran was adequately groomed and casually dressed. She noted that he was fully oriented, and his thought process was logical, and goal directed. He reported experiencing a depressed mood “occasionally” if he has a nightmare related to military trauma. He reported feeling depressed until he can get a beer. There was no evidence of psychotic processes. At the Veteran’s July 2015 BVA hearing he testified that he has become more reclusive and does not socialize even with his family. He stated that he feels safer by himself. He reported that he did not go to family gatherings. He did state that he occasionally talked to his mother on the phone. He testified being divorced three times. The Veteran stated that it is very hard for him to go to sleep. He testified that he stacks empty soda cans behind his doors so that if anybody opens the door, the cans will fall, and he will hear it. He reported panic attacks at least once a week. At a February 2019 VA examination, it was noted that his psychiatric disability results in occupational and social impairment with reduced reliability and productivity. He reported that his relationship with his children is strained. He reported having a relationship with his mother and sister. The Veteran reported sadness, isolative behaviors, difficulties falling asleep, anhedonia and limited socialization. Symptoms were noted to include: depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, and difficulty establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s symptoms of depression have worsened since 2010 and likely due to his sobriety since 2013. The examiner noted reports by the Veteran of being more isolated and withdrawn, feeling sad more days than not, anhedonia, lack of motivation, decreased energy, limited socialization, and strained relationships with his children. In a March 2019 opinion, it was noted that the Veteran was so depressed that he has difficulty sustaining energy and motivation to complete assignments at work. In an April 2019 VA examination it was noted that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran denied suicidal/homicidal ideations. It was noted that the Veteran endorsed depressive symptoms including dysphoric moods, loss of interests, irritability, fatigue, diminished sense of pleasure and social withdrawal. Symptoms of his psychiatric disability were noted to include: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. It was noted that he was well groomed. The examiner noted that the Veteran’s affect was dysphoric, and his mood was dysthymic. He was oriented times three. In a June 2019 addendum, an examiner noted that the Veteran’s psychiatric disability results in reduced reliability and productivity in both work related tasks as well as social interactions with others. For VA rating purposes his symptoms included depressed mood, irritability, panic attacks, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful, circumstances including work or a work-like setting; symptoms which warrant the assignment of a rating ranging from 30 to 70 percent. However, when considering all of the evidence as a whole, the Board finds that the evidence is most consistent with a 50 percent disability rating. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the record reflects that Veteran is entitled to an initial disability rating of 50 percent for his PTSD with alcohol use disorder for the entire period on appeal. The Board can determine no distinction in the Veteran’s psychiatric symptoms prior to February 28, 2019, the date of the VA examination showing a worsening of his PTSD. Accordingly, the Board finds that prior to February 28, 2019, an initial rating of 50 percent, but no higher, is warranted for PTSD with alcohol use disorder. The Board finds that a higher evaluation of 70 percent is not warranted. Specifically, the evidence does not demonstrate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. In this case, there was no evidence of such symptoms as 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; or neglect of personal appearance and hygiene. The Board has considered that the record does show one notation of difficulty adapting to stressful circumstances, a symptom of the 70 percent criteria, noted in the April 2019 VA examination. The Board fully recognizes that the listed symptoms for a 70 percent schedular rating are not all encompassing, and their presence is not necessarily determinative. However, the Veteran’s symptoms must cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Occupational and social impairment, with deficiencies in most areas, as contemplated by the rating criteria, is simply not shown or even approximated. The weight of the evidence, is most consistent with the 50 percent rating throughout the record, despite this one notation in the April 2019 VA examination. It is important for the Veteran to understand that a disability evaluation of 50 percent will cause him many problems and that this fact is not in dispute. The Veteran’s statements made during the VA examinations in many respects support a 50 percent evaluation, not a 70 percent finding. The critical question in this case, however, is whether the problems the Veteran has cited meet an even higher, 70 percent, level under the rating criteria. For reasons cited above, they do not, for any part of the rating period. REASONS FOR REMAND Entitlement to TDIU. The Veteran contends that he is entitled to a TDIU due in part to his service-connected PTSD with alcohol use disorder. With the grant above, the Board notes that the Veteran appears to now meet the schedular threshold criteria for a TDIU as defined in 38 C.F.R. § 4.16 (a), at least since October 26, 2011. It does not appear that the Veteran meets the schedular threshold criteria between October 4, 2010 and October 25, 2011. In a September 2011, Veteran’s Application for Increased Compensation based on Unemployability (VA Form 21-8940) the Veteran reported last working full time in April 2009. He attributed this to his tinnitus and PTSD. In a November 2011 VA Form 21-8940, the Veteran once again reported last working full time in September 2009. He attributed this to his tinnitus, hearing loss, and PTSD. The Veteran’s service-connected psychiatric disability has changed from being characterized as an anxiety disorder to a depressive disorder, to now being characterized as PTSD with alcohol use disorder. In the May 2018 BVA remand, the examiner was instructed to discuss the impact, if any, of the Veteran’s psychiatric disorder on his ability to work. In a June 2019 addendum, the VA examiner was asked to provide an opinion as to the effect of the Veteran’s service-connected psychiatric disability on his occupational functioning. The examiner does not appear to consider the Veteran’s PTSD in formulating her opinion. The Board notes that the Veteran’s service-connected psychiatric disability is now characterized as PTSD. The Board finds that an additional opinion is needed to adequately address the May 2018 Remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Given that the Board has granted an increased rating for the Veteran’s service-connected psychiatric disability, and the inadequacy of the June 2019 VA addendum opinion regarding the effects of the Veteran’s psychiatric disability on his employment, the Board finds that an additional opinion is necessary to determine whether the Veteran’s service connected acquired psychiatric disability prevents him from obtaining and maintaining substantially gainful employment. The matter is REMANDED for the following action: Obtain a retrospective medical opinion on the Veteran’s TDIU claim from a qualified VA clinician(s). The clinician(s) should indicate that the record was reviewed. If the clinician determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Rationale must be provided for the opinions provided. On review of the record, the clinician(s) should identify all limitations or functional impairment, concerning the Veteran’s prior employment, for the period beginning October 4, 2010, as: (i) due solely to either his service-connected PTSD with alcohol use disorder, diabetes mellitus, tinnitus, bilateral high frequency hearing loss, or hypertension; and (ii) due to all of his service-connected disabilities combined. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.