Citation Nr: 21002395 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-43 249 DATE: January 13, 2021 ORDER Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) with polysubstance dependence from October 10, 2019 is dismissed. Entitlement to an initial 70 percent rating for PTSD with polysubstance dependence (excluding periods of temporary total hospitalization ratings under 38 C.F.R. § 4.29) prior to October 10, 2019 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 10, 2019 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. On July 21, 2020 prior to the promulgation of a decision by the Board, the Veteran withdrew his claim for an initial rating higher than 70 percent for PTSD with polysubstance dependence from October 10, 2019. 2. The service-connected PTSD with polysubstance dependence prior to October 10, 2019 more nearly approximates occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. 3. Prior to October 10, 2019 the Veteran meets the schedular requirement for TDIU, and his service-connected PTSD with polysubstance dependence renders him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal, as to the issue of entitlement to an initial rating higher than 70 percent for PTSD with polysubstance dependence from October 10, 2019 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criterial for an initial 70 percent rating for PTSD with polysubstance dependence prior to October 10, 2019 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. Prior to October 10, 2019, the Veteran meets the schedular requirement for TDIU, and his service-connected PTSD with polysubstance dependence renders him unable to follow a substantially gainful occupation. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1989 to February 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. As noted by the Board in an August 2018 remand an April 2013 rating decision granted service connection for PTSD and assigned a temporary evaluation of 100 percent from July 12, 2011, an evaluation of 50 percent from October 1, 2011, an evaluation of 100 percent from December 14, 2012, and an evaluation of 50 percent from April 1, 2013. The Veteran did not appeal the April 2013 determination. However, VA received new and material evidence specific to the Veteran’s evaluation assigned for his PTSD, within the appeal period of the April 2013 rating decision. Specifically, March 2013 and April 2013 VA medical letters addressed the severity of the Veteran’s PTSD and an April 2013 VA opinion which addressed polysubstance abuse was obtained. 38 C.F.R. § 3.156(b). The claim was readjudicated in a December 2013 rating decision which continued a 50 percent evaluation for PTSD, which the Veteran expressly appealed in a December 2014 notice of disagreement. Following issuance of a statement of the case in September 2015, a substantive appeal was received within 60 days thereafter. As such, as a practical matter, the rating period for consideration on appeal, stems for the initial claim for which service connection was granted effective July 12, 2011. 38 C.F.R. § 20.304. Furthermore, an April 2013 PTSD disability benefits questionnaire raised entitlement to TDIU as part of the issue of entitlement to a higher initial rating for PTSD. Specifically, the April 2013 examiner documented the Veteran reported, in part, that his last job was truck driving about four to five years ago, because anger problems had gotten in the way. Therefore, the Board has jurisdiction to consider the issue of entitlement to TDIU as part of the Veteran’s disagreement with the initial evaluation assigned for his PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In a May 2020 rating decision, the RO granted an initial 70 percent rating for PTSD effective October 10, 2019. In a July 2020 rating decision the RO continued the 70 percent rating and recharacterized the issue as PTSD with polysubstance dependence. In a June 2020 rating decision the RO granted TDIU effective October 10, 2019. Thus, the issues are characterized as reflected herein. Issues 1: Entitlement to an initial rating higher than 70 percent for PTSD with polysubstance dependence from October 10, 2019. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. §§ 511(a) is subject to a decision by the Secretary. 38 U.S.C. §§ 7104. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. §§ 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 19.55. On July 17, 2020 the RO issued a supplemental statement of the case (SSOC) regarding the issue of entitlement to an initial rating higher than 70 percent for PTSD with polysubstance dependence from October 10, 2019. Subsequently on July 21, 2020, the Veteran submitted an Appeal Satisfaction Notice whereby he withdrew the issue of entitlement to an initial rating higher than 70 percent for PTSD with polysubstance dependence from October 10, 2019. In a December 2020 brief, the Veteran’s representative confirmed that the issues remaining on appeal were entitlement to a higher initial rating for PTSD with polysubstance abuse prior to October 10, 2019 and entitlement to TDIU prior to October 10, 2019. As the Veteran has withdrawn the issue of entitlement to an initial rating higher than 70 percent for PTSD with polysubstance dependence from October 10, 2019, there remain no allegations of errors of fact or law for appellate consideration. Issue 2: Entitlement to an initial rating higher than 50 percent for PTSD with polysubstance dependence (excluding periods of temporary total hospitalization ratings under 38 C.F.R. § 4.29) prior to October 10, 2019. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings”. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected PTSD with polysubstance dependence is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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. In addition, 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. 38 C.F.R. § 4.126(a). 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes, with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), that ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “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 only 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). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition affecting the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). 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). It is the impact of the symptoms on occupational and social functioning that determines the rating. Prior to October 10, 2019 the Veteran’s PTSD with polysubstance dependence more nearly approximates the criteria for a 70 percent rating based on occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board acknowledges that while on VA examination in April 2013, the examiner opined that the Veteran had 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 examiner also determined that the Veteran was irritable and angered easily. He had hypervigilance and suspiciousness. The examiner determined that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Board also acknowledges that the evidence also shows symptoms that are included in the criteria for ratings lower than 70 percent. However, such findings are outweighed by the evidence summarized below. A VA treatment record in January 2012 shows the Veteran had anxiety, anger, irritability, agitation, and hypersensitivity. A VA medical record in March 2012 shows that the Veteran had a history of 8 admissions in the residential treatment program for PTSD. The examiner opined that his symptoms have produced clinically significant impairment in his overall social and occupational functioning, noting that his problems were chronic and remain refractory to significant clinically change. VA medical records in March 2013, April 2013, and March 2014 show the Veteran had severe PTSD with significant impairment in his overall occupational and social functioning. It was noted the Veteran’s problems were chronic and remained refractory to clinically significant change. In March 2013 the record shows that the Veteran had 10 admissions in the residential treatment program for PTSD. The symptoms discussed above, to include irritability, anger, hypervigilance, and clinically significant impairment in social, occupational, or other important areas of functioning also were shown on the Veteran’s VA PTSD examination in June 2020 whereby the examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. At no point during the appeal period prior to October 10, 2019 has the Veteran’s overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record shows that the Veteran had total occupational and social impairment. VA treatment records in January 2012 show that the Veteran was alert and oriented, speech was logical and memory appeared grossly intact. There was no evidence of any current suicidal or homicidal ideation or intent. The Veteran denied having hallucinations. On VA examination in April 2013 the Veteran was fully oriented and was not in persistent danger of hurting himself or others. These findings are uncontroverted by the other competent evidence of record. Thus, the evidence does not more nearly approximate the criteria for total occupational and social impairment prior to October 10, 2019. Issue 3: Entitlement to TDIU prior to October 10, 2019. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In light of the decision herein to grant a 70 percent rating for PTSD with polysubstance dependence prior to October 10, 2019, the Veteran meets the schedular criteria for TDIU prior to October 10, 2019. The remaining question, then, is whether the Veteran’s service-connected PTSD with polysubstance dependence renders him unemployable. In this regard, the central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a statement dated in June 2020 the Veteran stated that he has not held a job since 2009 due to anger problems. In his TDIU claim in June 2020, the Veteran indicated that he had a high school education and previously worked for transportation companies. VA treatment records in January 2012 show the Veteran had anxiety, anger, irritability, and agitation. He emotionally and physically isolated himself from others and was unemployed. On VA examination in April 2013, the examiner noted that the Veteran’s last job was as a truck driver four to five years earlier and that anger problems got in the way of his work. VA medical records in March 2012, March 2013, April 2013, and March 2014 show the Veteran had severe PTSD with significant impairment in his overall occupational functioning. It was noted that the Veteran’s problems were chronic and remained refractory to clinically significant change. On VA PTSD examination in June 2020, the examiner noted that the Veteran struggled to maintain employment. In the past he worked various jobs to include working in construction and as a truck driver. The Veteran reported that he has not worked in nine years.   Thus, the weight of the evidence shows that the severity of the service-connected PTSD with polysubstance dependence rendered the Veteran incapable of obtaining and retaining substantially gainful employment given his level of education, training, and work experience prior to October 10, 2019. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.