Citation Nr: 21062615 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-07 201 DATE: October 8, 2021 ORDER From December 5, 2007, to June 11, 2012, entitlement to an initial rating of 70 percent, but not higher, for a service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcohol use disorder in stable remission due to military sexual trauma, is granted, subject to the law and regulations governing the payment of monetary benefits. From June 12, 2012, entitlement to an initial rating of 100 percent for a service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcohol use disorder in stable remission due to military sexual trauma, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From December 5, 2007, to June 11, 2012, the most probative evidence reflects that the Veteran's service-connected acquired psychiatric disorder manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as work, family relationships, thinking, and mood. 2. From December 5, 2007, to June 11, 2012, the Veteran's PTSD symptoms do not result in total occupational and social impairment. 3. From June 12, 2012, the Veteran's symptoms resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. From December 5, 2007 to June 11, 2012, the criteria for entitlement to an increased rating of 70 percent, but not greater, for service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcohol use disorder in stable remission due to military sexual trauma, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From June 12, 2012, the criteria for entitlement to an increased rating of 100 percent for a service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcohol use disorder in stable remission due to military sexual trauma, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1989 to August 1993, and from March 1996 to July 1996. She is a veteran of the Gulf War era and Peacetime. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2017 and January 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The rating decision granted service connection for posttraumatic stress disorder (PTSD), chronic with major depressive disorder, recurrent with anxious presentation; and alcohol use disorder in stable remission and assigned a 50 percent evaluation from December 5, 2007 and a 70 percent evaluation from June 21, 2016. Upon de novo review, a January 2018 rating decision increased the evaluation of post-traumatic stress disorder (PTSD), chronic with major depressive disorder, recurrent with anxious presentation; and alcohol use disorder in stable remission to 100 percent effective June 21, 2016. The 50 percent evaluation from December 5, 2007, to June 21, 2016, was confirmed and continued. As this was a partial grant of the benefits sought, the issue of entitlement to an initial rating in excess of 50 percent from December 5, 2007, remains on appeal. In May 2020 the Veteran testified at a hearing before the undersigned Veterans Law Judge concerning the issue of entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcohol use disorder in stable remission due to military sexual trauma. A transcript of the hearing has been associated with the Veteran's claims file. 1. From December 5, 2007, to June 20, 2016, entitlement to a rating in excess of 50 percent for a service-connected acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and alcohol use disorder in stable remission due to military sexual trauma Increased Rating 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, 4.2. The Veteran's service-connected PTSD is rated under DC 9411. The General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 50 percent rating: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; for 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; and difficulty to be able to establish and maintain effective work and social relationships. The General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 70 percent rating: occupational and social impairment, with deficiencies in most areas, such as with his or her work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with his or her 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); and inability to establish and maintain effective relationships. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 100 percent rating: 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. The focus of an increased rating analysis is on the severity of the symptoms and the level of impairment to occupational and social function rather than how many of the listed symptoms the veteran exhibits. 38 C.F.R. §§ 3.321, 4.2, 4.2, 4.10; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate disability ratings, called staged ratings, may be assigned for separate periods of time in accordance with the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Analysis The Veteran has alleged that her psychiatric disorder is more severe than contemplated by the assigned staged ratings. As service-connection has been established, the Board will not address in detail the trauma which established the diagnosis and instead will focus on symptoms during the period on appeal, that is December 5, 2007, to June 20, 2016. In January 2016, the Board remanded the Veteran's claim for a VA examination and medical opinion. McLendon v. Nicholson, 20 Vet. Ap. 79 (2006). The Veteran was afforded a VA examination for PTSD on June 21, 2016. She was diagnosed with PTSD, major depressive disorder, recurrent, with anxious presentation, and alcohol use disorder in stable remission. The Veteran stated that she began drinking to deal with PTSD and depression symptoms. She reported that she discontinued use of alcohol and methamphetamine in 2007. Her symptoms were noted as follows: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and disorientation to time or place. The examiner found that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to be able to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner remarked that both substance abuse and major depressive disorder are co-morbid and secondary to PTSD. He stated that disorientation to time or place is related to the Veteran's symptoms of derealization or "flashbacks." Suicidal ideation was noted as intermittent and without intent or plan. On March 15, 2017, an Administration Decision Formal Finding verified and confirmed the Veteran's claimed stressors. In November 2017 the Veteran filed a Notice of Disagreement with the April 2017 rating decision and requested review by a Decision Review Officer (DRO). She asserted entitlement to a 100 percent rating. She included the following statement: "My PTSD is more debilitating than what was opined. I am unable to work consistently. I have memory loss and often forget my nieces and nephews' names and I forget to pay my bills. I will go days without showering and I don't eat regularly. My sleep is affected. I often have difficulty sleeping or staying asleep and my sleep patterns are erratic." Upon de novo review, in a January 2018 rating decision, the DRO increased the evaluation of the Veteran's PTSD, chronic with major depressive disorder, recurrent with anxious presentation; and alcohol use disorder to 100 percent effective June 21, 2016. The 50 percent evaluation from December 5, 2007, to June 21, 2016, was confirmed and continued. In her January 2018 appeal, the Veteran included a statement that "I feel my effective date for the 100% rating for PTSD should be 09/01/2011." She indicated that date was when she began seeking treatment at a different VAMC where she recognized that her PTSD was so severe and that the underlying traumatic events had affected her ability to function. In June 2018, the Veteran submitted a Statement in Support of Claim requesting an effective date of 12/05/2007 for her 100 percent rating. She stated that she has experienced consistent issues with her PTSD from when she first filed the claim. She indicated that she has struggled with this disorder since she was sexually assaulted by her recruiter. She indicated having ongoing difficulties due to this trauma and was unable to maintain a job, relationships, and duty to be a good mother to her children. She stated that the trauma affected many aspects of her life and caused chronic substance abuse for many years. She stated that on 09/18/2007, she began sobriety and was able to face her trauma and file her claim on 12/05/2007. The Veteran more recently testified at a hearing in May 2020, which focused on entitlement to an initial rating in excess of 50 percent for the period of December 5, 2007 to June 20, 2016. She asserted that she is entitled to a higher rating than was assigned. She asserted that she was not afforded adequate development of her claim when it was initially filed. She stated that she was not scheduled for a VA examination at that time although she submitted documentation in support of her claim when it was filed. She indicated that she was continuously seen at a VAMC for her symptoms since 2007 and that in 2012, her symptoms were so severe that she had thoughts of harming herself. She stated that when her claimed stressors were questioned and then rejected, "That actually kind of triggered me there for a moment --for actually quite a while. It still kind of triggers me now because it was very upsetting." It was not until 2017 that VA confirmed her stressors. The Veteran indicated that initially she was diagnosed with major depressive disorder in December 2005 but the PTSD was not addressed at that time. The Veteran stated that she was rejected for admission to the hospital for treatment from April 2007 until September 2012 because she was not suicidal. The Veteran indicated that in April 2007, she presented to the emergency room requesting to be admitted because of increasing depressive symptoms. She was turned away and was told that she didn't qualify to be admitted under the 5150 hold Rule. She stated that she went to rehab on September 18, 2007, for her depression and alcohol and drug abuse. She stated that was when she became aware of the severity of her PTSD. She left the residential program after two or three weeks and continued treatment at the VA. She stated that from 2008 to 2012, she went to different VA programs on a weekly basis. However, due to her PTSD, she tended to lose focus and motivation. On June 12, 2012, the Veteran again visited the emergency room requesting to be admitted. She told the medical providers that she had taken four Ambien pills the day before and five that day because she, "wanted to relax." In September 2012, VAMC notes indicate that the Veteran was admitted voluntarily after presenting to the emergency room because of increasing depressive disorder, including suicidal ideations. The Veteran testified that at that time she was basically homeless with her children and they moved in with her aunt. She stated that she couldn't maintain a home or a job, the kids were missing school, and she was "on the verge." She noted an inability to have any pride in anything she had done or that she was "even worthy of being anything." The Veteran testified that the symptoms she presented in June 2016 during her first VA medical examination for PTSD were consistent all the way back to 2007. She indicated that she never had any kind of break in or relief from her symptoms and due to the severity of her disorder, she never obtained complete or even partial relief to enable her to go about her business without some kind of level of care. She stated that she has been on continuous medication from 2007 to 2012. She added that the medications have made a difference and she will probably be continuing them for quite some time. The Veteran also reported that she had numerous jobs where she "failed." She stated that she had a job as an EMT and lost it because of her PTSD, and "lack of self-worthiness." She last worked as an EMT in 2005. She tried to get back into the EMT program but "lost focus yet again and couldn't maintain that one." She stated that in September 2011 she was hired by a security company. It was a part-time job, on an as-needed basis. She stated that she had also worked part time as a mechanic, providing in-home care, and delivering newspapers. She stated that she worked part-time because of her PTSD. Working part-time gave her the ability to calm down, to not be so intense. She stated that she needed to work part time because "then at least I'm not committed, and I can relax and regain my mental status again." The Veteran indicated that her emotional support animals help her continue with positive behavior. The Board notes that the April 2017 rating decision and January 2018 rating decision set the evaluation for the Veteran's psychiatric disability without the benefit of the Veteran's hearing testimony or medical records that were submitted in June 2021, including VA psychiatric care notes dating from July 1, 2001, to December 12, 2012. The Board has reviewed this evidence along with the other evidence of record. For the time period from December 5, 2007, to June 11, 2012, the Board finds that the severity, frequency, and duration of the Veteran's symptoms most closely approximate the criteria for a 70 percent rating for acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder due to military sexual trauma. In doing so, the Board finds the VA examination, VA medical records, and the Veteran's statements and hearing testimony, provide evidence of symptoms, including passive suicidal ideation, that most closely approximate a 70 percent disability rating. The Board observes that prior to submitting her claim, a December 2005 psychiatry emergency department note indicates that the Veteran presented with complaints of increasing dysphoria accompanied by the following symptoms: episodic lability, anergia, feelings of hopelessness and helplessness, anhedonia, social withdrawal, poor motivation, hypersomnia (as many as 16 hours per night), and decreased appetite. The Veteran stated, "I cannot do it on my own, I need help with my depression." In January 2006, the Veteran was seen in the psychiatric clinic for evaluation and treatment of recurrent depression (dysphoria, anhedonia, anergia, hypersomnia, hyperphagia, rare suicidal ideation), starting while on active duty in approximately May 1990, fluctuating, and worsening significantly in late 2005. The Board notes that in April 2007, the Veteran presented to a VAMC and requested hospitalization due to her depression. She reported "a past suicidal attempt." A May 2007 psychiatry note indicates a "rare" suicidal ideation. Notably, the Board observes that the June 2016 examiner noted that she had suicidal ideation without intent or plan. The Board further notes that suicidal ideation is first addressed in the 70 percent rating criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). There is no distinction between passive and active suicidal ideation. The Court held that the term "suicidal ideation" in 38 C.F.R. § 4.130 encompassed a spectrum of behavior related to thinking about death, including both passive and active, with and without intent. That is, even without intent or plan or risk of self-harm, passive suicidal ideation can cause occupational and social impairment in most areas to support a 70 percent evaluation. On the other hand, the Board finds that the Veteran's symptoms from December 5, 2007, until June 11, 2012, are not of such severity, frequency, and duration to approximate the total occupational and social impairment necessary to support a 100 percent rating during this time period. The Veteran was maintaining some employment during that time period and was a single parent to her children. Further, the Veteran experienced passive suicidal ideation and in Bankhead v. Shulkin, 9 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims held that it is error to conflate the symptom of "suicidal ideation" in the criteria for a 70 percent rating with the risk of self-harm, that is the symptom of "persistent danger of hurting self or others" reflected in the criteria for a 100 percent rating. Unfortunately, as noted in the evidence set forth below, the Veteran's symptoms worsened beginning in June 2012 and the evidence shows that the Veteran's suicidal ideation and risk of self-harm increased and her symptoms met the criteria of "persistent danger of hurting self or others" applicable to a 100 percent disability rating. More specifically, a June 12, 2012, emergency room nursing note indicates that the Veteran's family called 911 and she was brought to the emergency room. She reported taking 4 tabs of Ambien on 6/11 and 5 tabs on 6/12. She stated, "I can barely remember anything about yesterday except I was tired and I thought I took two tablets," but "denied this was a suicide attempt." The Veteran reported that "When I was 10 or 11 I took a bunch of amoxicillin. In 1988 or 1989 I had ideations but did not do anything." A "suicide risk" assessment note dated June 25, 2012, indicated low level of intent. The Veteran presented to a VA walk in clinic on July 2, 2012, with request to "see someone today for increased "suicidal thoughts since Saturday on my way home. It scared me that I was talking about suicide and that I don't know about that my family keeps telling me about things I said." A nursing note indicates that the Veteran reported that she had thoughts running through her mind when she was driving home from a trip, "I was looking on the side of the road to hit a tree more since I got home yesterday." "I had those thoughts when I after what happened with my recruiter after I was raped. I have no intent. I just had thoughts. I want to know there is a plan for me if I need it." On July 12, 2012, the Veteran self-referred to a VA Alcohol and Drug Abuse Treatment Program (ADTP), stating "I realize that I have issues that have not been dealt with one on one, and I recently OD'd three weeks ago and I didn't realize that I overdosed/blacked out." The Veteran reported that she also blacked out and crashed her car. She reported misusing prescription medication to help her sleep. A July 2012 sexual trauma consult indicated that the Veteran complained of lack of motivation and focus, memory loss, constant sleeping (hypersomnia), history of drug/alcohol abuse, anxiety (progressing in last 6 months to year, doesn't like people touching her, germ-a-phobia has increased), and claustrophobia. She also stated that her anxiety increased with sobriety. She reported that she "OD in June, took 4 sleeping pills (related to trying to sleep)" and didn't "wake up for two days." She stated that she views her "generalized worry" as a form of avoidance related to her MST. She reported symptoms of hypervigilance, trouble with sleep, irritability, anger ("I just blew up for no reason."); and trouble concentrating. On September 4, 2012, the Veteran presented to a VA emergency room with a history of depression, worsening depression, and passive thoughts of death where "I just don't care anymore." She was assessed with increasing depression and passive suicidal ideation. She stated that she is also tired of "no one understanding me or understanding how hard it is to get up in the mornings." She reported thinking of drinking EtOH again even though almost five years sober. The Veteran endorsed hopelessness and avoidance of PTSD related to her MST but stated "I don't want to talk about it." On September 17, 2012 the Veteran reported that she had completed a MST intake and that she was recommended for followup for individual therapy. She stated that she had recently self-admitted to the psychiatric unit due to recognizing that she was having strong cravings to overuse sleeping medication (not overdose) and was worried she may overdose. In addition, the Board notes that in May 2020, the Veteran submitted an employment history indicating she has not worked full time during the pendency of the appeal. She has worked many part-time jobs and seasonal jobs, including security, in home care, and newspaper delivery. She implicates her PTSD symptoms as the reason she cannot maintain employment. The Board finds that her symptoms have rendered her unable to sustain full-time substantially gainful employment. After reviewing the evidence, the Board will give the Veteran the benefit of the doubt and find that as of June 12, 2012, the Veteran's symptoms have been shown to result in total occupational and social impairment and that a 100 percent staged is warranted from that date. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.