Citation Nr: 21074362 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-35 239 DATE: December 15, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with alcohol use disorder is granted. FINDING OF FACT Throughout the period on appeal, the frequency, severity, and duration of the symptoms of the Veteran's PTSD with alcohol use disorder most nearly approximated the criteria for a 70 percent rating. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for PTSD with alcohol use disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to January 1971, to include service in the Republic of Vietnam. He was awarded the Bronze Star Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 30 percent. In April 2019 and June 2021, the Board remanded the Veteran's appeal to the RO for further evidentiary development. A July 2020 rating decision granted an increased 50 percent rating for PTSD with alcohol use disorder, effective November 5, 2013. See July 2020 Rating Decision Narrative. As this rating is not the maximum allowable, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board's June 2021 remand directed the RO to obtain updated VA treatment records and private treatment records, and to attempt to obtain medical records from the Social Security Administration (SSA). In June 2021, the RO obtained updated VA treatment records and provided the Veteran with a VA Form 21-4142 so that he could list any private treatment providers. The Veteran did not respond. The RO requested medical records from the SSA and on June 10, the SSA issued a reply, stating that it held no medical records for the Veteran. Therefore, the RO substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 50 percent for PTSD with alcohol use disorder. On November 5, 2013, the Veteran filed the present claim for an increased rating of his service-connected PTSD with alcohol use disorder. The disability was assigned a 30 percent rating at that time; the rating was increased to 50 percent in a July 2020 rating decision, effective the date of the claim. The Board notes that it has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders, which provides the following criteria: A 50 percent rating is warranted 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "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." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. October 2013 VA treatment records note that the Veteran reported having suicidal ideation "a few years ago," but had no plan to take his life as of October 2013. In November 2013, the Veteran told VA personnel that he had difficulty in crowded places and became uncomfortable hearing bands play Taps during veteran ceremonies. He spoke of one of his friends who died in combat, and he reported current hypervigilance and heavy drinking. In December 2013, the Veteran told VA personnel of problems in his current living situation, living in an RV with rats nearby. He reported feelings of depression due to the holiday season and drinking heavily as a result. The Veteran was well groomed, and his conversation was within normal limits, but depressed. He denied suicidal or homicidal ideations. The Veteran underwent VA examination in connection with this claim in January 2014. The examiner diagnosed PTSD with alcohol use disorder and found that the disability resulted in "occupational and social impairment with occasional decrease in work efficiency." The Veteran reported that he had been widowed for eight years, with three grown stepchildren and one grown biological child. He said that he had two close friends who he corresponded with as well as other friends at the local American Legion. He said that he does not trust people and he enjoyed spending his time rebuilding vehicles. In terms of his occupation, the Veteran reported that he drove trucks until April 2013 and he had no disciplinary problems when he was working. He said that he smokes cigarettes and drinks about 15-20 drinks per day. In terms of behavioral observations, the examiner noted the Veteran was casually dressed, with good eye contact and hygiene and a fair appearance overall. His level of activity and his speech were normal. The Veteran stated that he felt "a little bit uptight" because he did not like being at a medical facility. His thought content and progression were unimpaired, logical, and goal-directed, and his memory was within normal limits. The Veteran had no delusions or hallucinations. He reported that he keeps a firearm within arm's length. He said that he awakens during the night. The Veteran denied panic attacks, and reported suicidal ideation occurring most recently a few years ago. The Veteran indicated that he had nightmares and flashbacks, which could be triggered by movies or smells. He described himself as "quite jumpy, jittery." The Veteran reported being involved in a fight about five years earlier and said that he used to be in many fights in the past. The examiner noted symptoms including anxiety and suspiciousness. A January 2014 VA treatment record notes nightmares, flashbacks, and exaggerated startle response and hypervigilance. The Veteran reported tremors which he believed to be related to alcohol. He also reported social isolation and intrusive thoughts and low energy. He denied suicidal thoughts since his wife died eight years earlier and he denied impaired concentration. The Veteran said that his hygiene is impaired at times. On examination, the Veteran was well-groomed and maintained fair eye contact and reported continued depression and showed a flat affect but logical thought content and process with good insight and judgment, normal speech, and denied suicidal or homicidal ideations. One of the Veteran's daughters submitted a statement in April 2014 which described the Veteran's behavior in the past, at a time outside the appeal period. In June 2014, VA treatment records indicate that the Veteran was well groomed and his behavior generally was within normal limits. He maintained good eye contact, although he had hand tremors and a flushed complexion. His mood was euthymic, his affect congruent, and his thoughts were logical in their content and process. The Veteran's speech was within normal limits and he denied suicidal or homicidal ideations. A July 2014 VA treatment record notes that the Veteran was casually dressed, his language grossly intact, and his thought process linear. He denied suicidal or homicidal ideations. The Veteran's judgment and insight were described as poor. He was fully oriented with no apparent deficits in his knowledge or concentration, and his memory was fair. In January 2015, the Veteran reported that he was seeing a neurologist for his tremors and he had reduced his drinking from 30 to 10 beers per day. He was casually dressed, with an appropriate affect and direct thought process. He denied suicidal or homicidal ideations. His judgment and insight were fair and he was fully oriented. The Veteran was seen at a VA facility again in July 2015. He reported that his mood was good and that he got very little sleep at night, but he continued to drink less and had no suicidal or homicidal ideations. The Veteran reported auditory hallucinations at night. His judgment and insight were fair, and he was fully oriented. There were no apparent deficits in his concentration and his memory was grossly intact. The Veteran continued to report auditory hallucinations in September and December 2015 VA treatment sessions. The Veteran continued his treatment with VA in August and November 2016. In August, the Veteran stated that he was only drinking 6 drinks per day. In February 2017, the Veteran told VA personnel that his daughter's ongoing divorce was upsetting to him. In May 2017, a VA clinician stated that the Veteran was casually dressed, with anxious mood and severe tremors which diminished after a while; his speech and language were within normal limits and his thought process was linear. The Veteran denied auditory and visual hallucinations and his insight and judgment were fair. The Veteran was fully oriented and aware of current events and his memory was grossly intact. A February 2018 treatment record notes that the Veteran continued to drink but he was sleeping better and socializing daily at American Legion. The Veteran stated that he was depressed but his energy level was fair. He denied suicidal and homicidal ideation, but endorsed auditory or visual hallucinations at night, intrusive thoughts, avoidance, hypervigilance, and an exaggerated startle response. In May 2018, VA stated that the Veteran presented with an anxious mood. His speech and language were non-pressured and grossly intact and his thought process was linear in form. He denied auditory and visual hallucinations and suicidal or homicidal ideations. The Veteran next underwent VA examination in November 2019. The examiner diagnosed PTSD with alcohol use disorder and said that the symptoms result in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was living with one of his daughters. He said that he did not date but was a member of the American Legion where he socialized regularly. He also communicated regularly with his children, grandchildren, and great-grandchildren. The Veteran discussed his treatment at VA for PTSD and nightmares and denied suicidal ideations or thoughts. On examination, the Veteran was alert and oriented as to person, place, and time. He was cooperative and his mood was calm and his affect normal. The Veteran's speech was at a normal rate, rhythm, volume, and tone. His thought process was linear and goal directed. The Veteran had no suicidal ideation, obsessive ideas, psychomotor retardation or agitation. He denied auditory or visual hallucinations and his memory and concentration were good. A December 2019 VA treatment record notes that the Veteran continued to spend time at the American Legion. He was sleeping 8 hours per night, but reported some periods of sadness and irritability. The Veteran was spending most of his time alone watching television, and he experienced nightmares and periodic flashbacks. The Veteran said that he was having three to six beers a day. He denied suicidal or homicidal ideation. In June 2020, the Veteran reported good compliance with his psychiatric medications with no side effects. He said that his mood was very good, but reported some periods of anxiety, irritability, and sadness. He reported some nightmares. An April 2021 VA treatment record notes that the Veteran denied recent suicidal ideation and said that at no time has he ever taken steps toward suicide. The Veteran was hospitalized in April 2021 for cardiac reasons; at that time, he was alert and oriented to person, place, and time, his mood, affect, judgment, and insight were normal as well as his recent and remote memory. As noted above, disability ratings for PTSD with alcohol use disorder are determined by using the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The evidence shows that the Veteran showed varying symptoms throughout the period on appeal. His anxiety, depressed mood, suspiciousness, and chronic sleep impairment were consistent with a 30 percent rating. The Veteran reported that he neglected his personal hygiene, as consistent with the 70 percent rating criteria, but VA clinicians did not report that was the case. VA treatment records also note periods of irritability, but without violence. 38 C.F.R. § 4.130. Notably, the Veteran reported auditory and visual hallucinations, usually at night, intermittently during this period. Persistent hallucinations or delusions are often commensurate with a 100 percent rating; however, the Veteran's hallucinations were not persistent. Considering social impairment, the Veteran was widowed and living on his daughter's property throughout the appeal period. He was dependent on his daughter to drive him and in order to live on her property. He had some friends, including friends at the American Legion, and he maintained his relationships with his children and grandchildren. In terms of occupational impairment, the Veteran stopped working in 2013 due to changes in the rules governing truck drivers. The Board notes that the January 2014 VA examiner opined that the Veteran's PTSD with alcohol use disorder resulted in occupational and social impairment with occasional decrease in work efficiency. That description corresponds to the criteria for a 30 percent disability rating. The November 2019 VA examiner found that the disability resulted in occupational and social impairment with reduced reliability and productivity, which corresponds to the 50 percent criteria. However, the evidence also shows that the Veteran suffered from symptoms consistent with a 70 percent disability rating, including periods of unprovoked irritability, as well as hallucinations which are consistent with a 100 percent disability rating if they are persistent. The Veteran pointed out in his October 2021 brief that the evidence shows that he "has a short fuse and tends to blow up at people a lot," and the Veteran argued that his symptoms result in difficulty adapting to stressful circumstances, including work or a worklike setting. The Board gives the Veteran the benefit of the doubt and finds that the frequency, severity, and duration of the Veteran's symptoms more nearly approximate the criteria for a 70 percent rating. The evidence does not show total social impairment because, although the Veteran is dependent on his daughter for transportation and a place to reside, he maintained relations with friends and other family members. There is no evidence of gross impairment of thought processes or communication, grossly inappropriate behavior, or persistent danger of hurting himself or others, or disorientation to time or place. There is also no history of legal problems or violence. Therefore, the Board finds that the frequency, severity, and duration of the Veteran's social and occupational impairment during this period are not consistent with total social and occupational impairment. The Board has also considered whether additional staged ratings are appropriate in this case. However, the above evidence reflects that the Veteran's symptomatology has been relatively stable throughout the appeal period and was consistent with no more than a 70 percent rating since November 5, 2013. Therefore, additional staged ratings are not warranted in this case. In summary, the Board finds entitlement to a 70 percent rating for PTSD with alcohol use disorder is warranted and, to that extent, the claim is granted. M. D. Bruce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.