Citation Nr: A21017628 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 190912-31563 DATE: November 1, 2021 ORDER Entitlement to a 50 percent disability rating, but no higher, for service-connected other specified trauma and stressor related disorder with alcohol use disorder, claimed as PTSD, is granted. FINDING OF FACT Throughout the appeal period, the Veteran's other specified trauma and stressor related disorder with alcohol use disorder has manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of motivation and mood, depressed mood, anxiety, hypervigilance, difficulty in establishing effective social relationships, and chronic sleep impairment. Although the Veteran endorsed suicidal ideation, the evidence of record does not support that this symptom, alone or together with his other symptoms, have caused occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a 50 percent rating, but no higher, for other specified trauma and stressor related disorder, with alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Codes (DCs) 9499-9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to April 1970, to include service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision confirmed and continued a 30 percent disability evaluation for the Veteran's service-connected other specified trauma. By way of history, the RO granted service connection for other specified trauma and stressor related disorder in a March 2019 rating decision, with an effective date of October 11, 2018. The Veteran filed a Supplemental Claim in May 2019, seeking an increased rating. In August 2019, the RO issued the rating decision on appeal, which continued the 30 percent rating. The Veteran timely filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), where the Veteran elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. Thereafter, he had 90 days to submit additional evidence relevant to the appeal period. The AMA does not include any limitations on a claimant's ability to file supplemental claims, as long as new and relevant evidence is provided or identified with each supplemental claim. 38 C.F.R. § 3.2500(c), 3.2501. However, in order to use supplemental claims to continuously pursue review of an issue and thereby protect the earliest possible effective date in the event of an award of benefits, the supplemental claims must be filed within one year of notification of the last AOJ or Board decision. 38 C.F.R. § 3.2500(h). Here, the Board observes that the Veteran's supplemental claim of May 2019 for his increased rating claim was filed less than a year after the previous March 2019 rating decision. New and relevant evidence received by VA before it issues its decision on a supplemental claim will be considered as having been filed in connection with the claim. The evidentiary record for a supplemental claim includes all evidence received by VA before it issues a notice of a decision on the supplemental claim. 38 C.F.R. § 3.2501. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. Here, the Board notes that the Veteran submitted new evidence relating to his other specified trauma and stressor related disorder since the RO issued its August 2019 rating decision, including his April 2021 Board hearing testimony. As such, the Board finds that new and relevant evidence has been submitted for the purposes of the increased rating claim. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Psychiatric disorders, however diagnosed, are rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter which diagnostic code is assigned. The Veteran's other specified trauma and stressor related disorder with alcohol use disorder is evaluated under Diagnostic Codes 9499-9411. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated DC indicates an unlisted disorder under DC 9499 that is rated, by analogy, under the criteria for PTSD under DC 9411; therefore, providing that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Board will list the criteria for ratings of 30, 50, 70, and 100 percent under the General Formula, as they are pertinent to the current claim on appeal. Under Diagnostic Code 9411, a 30 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with 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). Id. A 50 percent rating is warranted under DC 9411 for PTSD when there is 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, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned under DC 9411 for PTSD manifested by 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), or an inability to establish and maintain effective relationships. Id. The maximum rating available of 100 percent is assigned under DC 9411 for PTSD manifested by 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, and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Formula for Mental Disorders, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Suicidal ideation is a symptom contemplated by the VA's 70 percent rating criteria. Bankhead, 29 Vet. App. at 19. The United States Court of Veterans Claims (Court) has held that when assigning a disability evaluation, it is the totality of the relevant evidence and lay evidence, not just one piece of evidence that must be considered. Id. However, the Court also held that "the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations and other symptoms are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. Entitlement to a rating higher than 30 percent for other specified trauma and stressor related disorder with alcohol use disorder (claimed as PTSD) The Veteran contends that his other specified trauma and stressor related disorder with alcohol use disorder is more disabling than represented by the 30 percent rating assigned since October 11, 2018. Turning to the evidence of record, a September 2018 psychology treatment note reported that the Veteran experienced recurring thoughts and nightmares of Vietnam, including an incident where he witnessed a friend get shot. No suicidal or homicidal ideations were noted. Also, in September 2018, the Veteran was given the PHQ-9 Depression questionnaire and scored a 15, which indicated moderate depression. When asked about "thoughts that you would be better off dead or of hurting yourself in some way," the Veteran responded, "several days." In October 2018, the Veteran presented to the Emergency Room for suicidal thoughts, depression, and anxiety. The Veteran was voluntarily admitted to Unit 22 for treatment for alcohol and opioid detoxification. The examiner noted that the Veteran was also suffering from memories of Vietnam, for which he never received treatment. The justification for acute inpatient hospitalization included danger to self for ethanol alcohol (ETOH) withdrawal and suicidal ideations. A Psychiatry Admission Note reported the Veteran was admitted for detox for opioid use disorder, alcohol use disorder, and PTSD. The Veteran reported for the last year he had been using opioids, oxycodone (roughly eight 30 mg tablets a day), and a 12 pack a beer a day. Since retirement in January 2018, he had a worsening of PTSD symptoms, poor sleep, and depression with suicidal thoughts on and off, but denied any plans or attempts. A suicide risk evaluation was completed, with the Veteran noting the most recent thoughts of engaging in suicide-related behavior was within the past 1-7 days. The frequency of these thoughts was between 2-5 times a week. No suicidal intent was noted. A medical record during his Unit 22 treatment noted he continued to feel depressed but denied suicidal or homicidal ideations, or any form of hallucination. An October 2018 psychiatry note reported the Veteran had been self-medicating with ETOH and opiates. He admitted frequent intrusive and distressing thoughts of Vietnam, flashbacks, and nightmares with difficulty sleeping. Since retirement, he noted he was excessively thinking about Vietnam. He reported living with his son. Upon mental status examination, the Veteran was described as having normal grooming and hygiene, with normal memory and thought processes. No suicidal or homicidal ideations were noted. Judgment, insight, and impulse control were all noted as good. Following an increased baseline for suicide risk, a Suicide Safety Plan was created in October 2018, prior to his discharge from Unit 22. The Veteran provided the names of 3 people, besides mental health providers, that could provide social contact who may distract from a crisis. During an October 2018 medical treatment record, the Veteran noted "[i]n Vietnam I was a leader, in High School I was a leader, in life I was a leader, now I feel useless," due to his retirement. He noted his memories are coming out from Vietnam and "I can't help I see all the guys that died. It should have been me." The Veteran noted he is divorced, with 4 children, and lives with his 29-year-old son, who introduced him to street opioids. A psychology treatment record from October 2018 noted he remained angry at how he was treated in the military and now that he is not working, he is flooded with those recollections. He noted that holding onto that rage is something that is very difficult to let go of, even though it leads him back to drug dependence. The Veteran denied any suicidal or homicidal ideations. In November 2018, the Veteran was contacted for post-discharge follow-up. During the call, the Veteran denied suicidal or homicidal ideations, or alcohol or drug use. He reported he was adjusting to discharge and was looking for employment to "stay busy." In a November 2018 mental telehealth appointment, the Veteran reported "I don't know what to do with myself" after retirement and was struggling to find structure in post-retirement life. He reported that he has difficulty relating to non-veterans and non-combat veterans and reported feeling emotionally cut off, quick to anger, and an inability to maintain significant relationships. He reported continued substance use "on weekends," and continued using alcohol. The Veteran was strongly encouraged to attend AA/NA and to abstain from substance use. He denied any suicidal or homicidal ideations. Upon mental status examination, the Veteran was noted to have normal grooming and hygiene, with normal attention and concentration. Similarly, during a December 2018 psychiatry-psychiatric diagnostic interview examination, the Veteran noted he was having issues adjusting to retirement. He noted he experiences more flashbacks and recollections since he retired a year ago, as well as sleep disturbances. Post-retirement, the Veteran started using alcohol and prescription opiates, as he had "too much time on my hands, I feel something is very wrong." He denied active or passive suicidal or homicidal ideations. No history of suicide attempts was noted. He reported combat exposure, flashbacks, nightmares, avoidance, and hypervigilance. Upon mental status examination, the Veteran had normal grooming and hygiene. Thought processes, concentration, and attention were noted as normal. Mirtazapine 30 mg for depression/PTSD was reported as an active medication. In a statement provided by the Veteran in January 2019, he noted he was more withdrawn than usual since retiring and he does not sleep much. See Statement in Support, January 2019. The Veteran was provided a VA examination in January 2019. A diagnosis of other specified trauma and stressor related disorder, with alcohol use disorder was noted that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He reported being divorced twice, with both ex-wives being issued an order of protection against him towards the end of the marriages. He indicated having good relationships with his 4 children, lives alone, and prefers to remain single due to a history of troubled relationships. He noted having 1-2 friends. He retired from the carpentry business in January 2018 after 35 years. He reported that particularly since retiring, he has noticed having nightmares related to Vietnam "a couple times a week," difficulties with sleeping, and some hypervigilance. He reported a history of heavy opioid use but denied any current use. He reported drinking a 6 pack of beer per night. The examiner noted the Veteran was casually dressed, with good hygiene. He was personable and detailed in sharing experiences. Mental health reports from February 2019 and March 2019 noted ongoing sleep disturbances, with nightmares about the war. A mental health note from May 2019 reported the Veteran "still can't sleep." He noted ongoing issues with poor sleep and stated, "I have nightmares all the time of the guys that were killed," and noted ongoing hypervigilance where he reported he is always on guard. He noted he self-isolates and is unable to make and keep relationships. No suicidal or homicidal ideations were noted. Upon mental status examination, the Veteran's grooming and hygiene were normal, with mood neutral and affect appropriate. Regarding attention, the Veteran was noted as hypervigilant. No suicidal or homicidal ideations were noted. The Veteran was provided a VA examination in August 2019. A diagnosis of other specified trauma and stressor related disorder, with alcohol use disorder was noted that results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that his daughter, son-in-law, and child live in the home with him, and his other daughter and two sons visit him. It was noted he has a friend he spends time with. He continued to drink a 6 pack of beer a day. For VA rating purposes, the Veteran's symptoms included chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. Upon mental status examination, the examiner described the Veteran as neatly dressed, well-groomed, with appropriate eye contact. His thinking was coherent and goal-directed, with no evidence of hallucinations, delusions, or paranoia. Attention, concentration, and memory were grossly intact. No suicidal or homicidal ideations were noted. The examiner noted that since his last examination in January 2019, there has been no improvement in his symptoms, including that he does not sleep well, is unmotivated, irritable, and has difficulty concentrating with intrusive thoughts. During a mental health treatment note from August 2019, the Veteran reported feeling depressed due to looking for work, without success. The examiner discussed increasing the Veteran's Mirtazapine for depression/PTSD, and he agreed. No suicidal ideation, intent, or plan were noted. Current impulse control and judgment were reported as good. During a September 2019 Vocational Rehabilitation appointment, the Veteran created a marketable resume. Additionally, during the meeting he submitted his resume for an open position and was scheduled for an interview on September 30, 2019. A December 2019 treatment record noted that the Veteran was able to repress his memories from Vietnam while working, but since he retired, he is having issues with repressing those feelings. He noted he gets anxious and spends time with friends, but his friends hang out in bars, so he drinks 6 beers 2-3 times per week. During his April 2021 hearing, the Veteran testified that he does not sleep well since he retired. He noted he gets up "every day at two or three in the morning and I am up. And it is wearing me out." See Hearing Transcript, Page 4. He also noted that he regularly withdraws from people and has "not had an intense relationship with a woman or even with friends anymore. I mean with friends I have friends but there no there is no bonding." Id. at 5. He also noted he is very "impatient with things," and does not have anxiety, but he feels "like flipping out," and it is a fight to try and control so nobody can see it. He testified he was seeking a 50 or 70 percent evaluation for his disability. After having considered all of the evidence of record, the Board finds that throughout the appeal period, the Veteran's other specified trauma manifested by occupational and social impairment with reduced reliability and productivity, such that a 50 percent rating is warranted. It has not more nearly approximated occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. The Veteran's other specified trauma and stressor related disorder symptoms were of the same type, frequency, duration, and nature as those associated with a 50 percent rating. The Veteran's symptoms have been manifested by a lack of motivation, a tendency to isolate, chronic sleep impairment, depressed mood, anxiety, hypervigilance, disturbances in mood and motivation, difficulty in establishing and maintaining effective work and social relationships, social impairment including irritability, and increased flashbacks/recollections from the war, all included in the criteria for a 50 percent evaluation. The VA examiners of record have found that the Veteran's other specified trauma and stressor related disability has manifested by no more than occupational and social impairment with occasional decrease in work efficiency. This is consistent with a 30 percent rating. The VA examination reports were based largely on the Veteran's lay reports of his symptoms. Although the Board finds these VA examination reports probative, the Board has assigned a higher 50 percent rating because, when considering the other evidence of record, the evidence shows that the Veteran's other specified trauma and stressor related disability has more nearly approximated occupational and social impairment with reduced reliability and productivity. Specifically, treatment records show that the Veteran experienced more severe disturbances of motivation and mood than contemplated by the 30 percent rating criteria. Treatment records have noted impaired judgment with opiod and alcohol use, self-isolating tendencies, increased flashbacks/recollections, and difficulty with establishing and maintaining effective work and social relationships. The Board acknowledges that in October 2018, the Veteran went to the Emergency Room with suicidal ideations. The Board does not dispute that he has experienced such ideations without plan. No intent, plan, or attempt is of record. However, like VA examination reports, medical treatment records sometimes only capture a picture at a particular moment in time. It may not be reflective of how a veteran felt the day before or would be a guesstimate of how he was going to feel the day after. It is for this reason that the totality of the evidence in any appeal must be reviewed and considered. When one views the evidentiary picture presented, it is worth noting that on VA examinations in January 2019 and August 2019, the Veteran specifically denied any suicidal thoughts or plans. His VA treatment records also do not contain any indication of suicidal thoughts. See Treatment Records, November 2018, December 2018, March 2019, August 2019. Furthermore, during his April 2021 Board hearing, no current active or passive suicidal ideations were noted. Thus, the evidence shows that the Veteran's suicidal ideations, although present, have not been consistent. The Board has considered these ideations, along with his other symptoms, and finds that his suicidal ideations alone, or when coupled with his other symptoms, are not consistent with occupational and social impairment with deficiencies in most areas. Indeed, as noted above, although the Veteran has experienced such symptoms, he was actively looking for work in September 2019, was helping to care for grandchildren, and maintains relationships with his 4 kids. See Hearing Transcript, Page 5; VA Examination, January 2019; Vocational Assessment, September 2019. He has not indicated that his suicidal ideation from October 2018 impact him socially or occupationally. Further, although the Veteran reported a tendency to isolate, the 50 percent rating criteria contemplates difficulty in establishing and maintaining effective work and social relationships. Although the Board finds that doubt should be resolved in the Veteran's favor regarding his being assigned a 50 percent rating, the Board finds that at no point during the appeal period have the Veteran's symptoms of other specified trauma and stressor related disorder with alcohol use disorder manifested to such a degree that more nearly approximates the criteria for a 70 percent disability rating. Although the Veteran has reported significant difficulties establishing and maintaining family and personal relationships, the evidence indicates that he has maintained a relationship with his 4 kids throughout the appeal period, to include periods of cohabitating with his son and daughter. Furthermore, the Veteran testified during his April 2021 Board hearing to assisting with childcare for his grandchildren. He has not endorsed near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively. He has also not endorsed symptoms of obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; or symptoms of similar type, severity, and frequency. Throughout the appeal period, the Veteran's speech and thought content were within normal limits, his thought processes were logical and goal-directed, there was no evidence or report of delusions or hallucinations, his insight and judgment were intact, and memory and attention appeared grossly intact. He was well-groomed without any indication of neglect of personal appearance and hygiene. Based on the foregoing, the Board cannot find that he has total social and occupational impairment such that a 100 percent rating would be appropriate. He has relationships with his 4 children, to include assisting with childcare for his grandchildren, and was actively seeking work during the appeal period. Because total occupational and total social impairment is required for a 100 percent rating, the criteria have not been met. (Continued on the next page) In sum, the Board finds that throughout the appeal period, the Veteran's other specified trauma and stressor related disability has most nearly approximated occupational and social impairment with reduced reliability and productivity, such that a 50 percent rating, but no higher, is warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.