Citation Nr: 21074375 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-02 741A DATE: December 15, 2021 ORDER Entitlement to an initial rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) with alcohol disorder is granted. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD has been manifested by symptoms of sleep impairment, intrusive thoughts, daily disassociated episodes, social isolation, emotional detachment, irritability, exaggerated startled response, passive suicidal ideations, crying easily, anger outbursts, depression, sadness, and anxiety which more nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, thinking and mood. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 70 percent for service-connected PTSD with alcohol disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1982 to March 1993. Entitlement to a higher initial rating for service-connected PTSD with alcohol disorder. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran's service-connected PTSD is currently rated at 30 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411, effective January 29, 2016. Under the General Schedule of Ratings for Mental Disorders, a 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. 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 worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent 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; 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 Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit Court stated 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. It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning to the evidence of record, the Veteran was afforded a VA examination in April 2016. The Veteran was diagnosed with PTSD and alcohol use disorder. The examiner opined that it was not possible to differentiate what portion of the occupational and social impairment was caused by his PTSD and alcohol use disorder, reasoning the following: "[b]oth diagnoses are comorbid and both equally affect functioning." The examiner summarized the Veteran's PTSD as demonstrating 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. During the Veteran's evaluation, he reported symptoms of nightmares several times per week, intrusive thoughts of combat several times per day, disassociated episodes daily where he found himself "spacing out," difficulty falling asleep, avoiding crowds, feeling very alert in public, emotional detachment towards others, daily irritability, and exaggerated startled response. He also reported that he drank daily and continued to use alcohol to help him sleep. He denied panic attacks, reckless behavior, suicidal/homicidal ideations, manic-like symptoms, appetite issues, and continuous symptoms associated with depression, including decreased interest, decreased motivation, and decreased energy. Regarding social impairment, the Veteran stated that he had good friends that were mostly from childhood. However, regarding familial relationships, he did not have a good relationship with his brothers and despite a "good relationship" with his wife, he admitted that he was emotionally distant and isolative, as well as becoming angry at people, especially his brothers. Regarding occupational impairment, he reported that he worked full-time, got along well at work with others, and did not miss work due to mental health reasons, as "he always want[ed] his work to be perfect." The Veteran demonstrated symptoms of anxiety and chronic sleep impairment. According to the examiner's mental status observation at the time of his evaluation, the Veteran's grooming and hygiene were within normal limits. There were no delusions, hallucinations, or reported history of delusions or hallucinations. His mood and effect were within the normal range of function. He was articulate, logical, oriented, talkative, and his behavior was appropriate throughout the session. He was pleasant, cooperative, and fully engaged during the evaluation. He was also able to maintain minimal personal hygiene and other basic activities of daily living. He denied any inpatient psychiatric hospitalizations or suicide attempts. However, the Veteran acknowledged that he had "some thoughts at times that he doesn't need to be here anymore, but this is very passive, and he denies any plan to harm himself." In a May 2016 mental status consultation, the Veteran was alert and oriented to person, place, and time. He denied thoughts/intent of harm to self or others. During the Veteran's May 2021 hearing, the Veteran reported symptoms of crying easily, anger outbursts, depression, sadness, anxiety, and sleeplessness. He stated that "he ran his wife off" approximately one year ago due to his PTSD symptoms. He was unsure of whether they would get a divorce. He also stated that he barely spoke to his brother and threatened to kill one of his brothers. He detailed an incident where he "snapped" at an employee in his company. He reported that he stepped down as a manager and took a "pretty huge pay cut," as work became difficult for him to do and he did not want it to get to him. He also discussed that he began practicing the guitar, but if he "puts it down," he'll forget everything he learned from the last time he played. Overall, the record on appeal is sparse as this consists of an initial rating in the context of a Veteran that has not sought significant outpatient treatment. The totality of the lay evidence reflects that the Veteran's PTSD is manifested by symptoms of sleep impairment, intrusive thoughts, daily disassociated episodes, social isolation, emotional detachment, irritability, exaggerated startled response, passive suicidal ideations, crying easily, anger outbursts, depression, sadness, and anxiety. The Veteran's testimony at the hearing was credible. The Veteran demonstrates some examples for the 30, 50 and 70 percent ratings. The April 2016 VA examination included mental status examination which did not demonstrate significant impairment of speech, memory, abstract thinking, orientation, or hygiene. However, as noted by the Veteran's attorney, the Board must look beyond the "pick boxes" utilized in an examination report and consider the Veteran's own description of symptoms and the effects of those symptoms upon his industrial and social impairment. Factually, the Veteran has maintained substantially gainful employment, but credibly reports that he has been able to maintain gainful employment by taking a substantial pay cut with less responsibility which helps him manage his PTSD symptoms. His passive suicidal ideations which are an example of a 70 percent rating. He has some social relations, but has a marriage that may or may not be headed towards divorce and he has threatened to kill one of his brothers over disagreements. The undersigned observes that, at his hearing, the Veteran was very straight-forward and credible and became visibly upset when talking about his circumstances. Overall, the Board finds that the Veteran's PTSD is manifested by symptoms of sleep impairment, intrusive thoughts, daily disassociated episodes, social isolation, emotional detachment, irritability, exaggerated startled response, passive suicidal ideations, crying easily, anger outbursts, depression, sadness, and anxiety which more nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, thinking and mood. As such, a 70 percent rating is warranted for the entire appeal period. (continued on the next page) The Board next notes that the Veteran is working substantially gainful employment albeit at a substantial pay cut and maintains some social relations. There is not "total" occupational and social impairment which the Veteran and his attorney agreed at the hearing. As such, a rating in excess of 70 percent is denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.