Citation Nr: 21074853 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-00 808 DATE: December 16, 2021 ORDER An initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder is denied. Entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a service-connected condition is granted. FINDINGS OF FACT 1. The Veteran's PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder has not been manifested by total social impairment at any time during the appeal period. 2. The Veteran was admitted to a VA facility for treatment of his service-connected PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder, on August 15, 2011 and discharged on September 23, 2011, a period greater than 21 days. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 70 percent for PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a service-connected condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.29. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from August 1966 to August 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in March 2012, which granted service connection for PTSD and assigned a 50 percent rating effective February 18, 2011. The disability was recharacterized as PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder in an October 2016 rating decision. A transcript of the Veteran's testimony at a videoconference hearing before the undersigned Veterans Law Judge in September 2018 is of record. The claim was remanded by the Board in June 2019 and in a May 2021 rating decision, the rating was increased to 70 percent effective February 18, 2011. The Board also remanded several claims for service connection in June 2019, which were granted in the May 2021 rating decision and are no longer before the Board on appeal. INCREASED RATING 1. An initial rating higher than 70 percent for PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder Service connection for PTSD was established in the March 2012 rating decision that is the subject of this appeal, which assigned a 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411 effective February 18, 2011. The disability was recharacterized as PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder, in an October 2016 rating decision; the rating was increased to 70 percent, also effective February 18, 2011, in a May 2021 rating decision. The Veteran testified that he had had problems with social relationships and had been married five times, and that he had difficulty with crowds and impaired sleep. Under the General Formula for Mental Disorders (General Formula), 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 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). Pursuant to the General Formula, a 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, 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. 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 finds that an initial rating higher than 70 percent for PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder is not warranted at any time during the claim since the preponderance of the evidence does not more nearly approximate the criteria for a 100 percent rating, which requires total social and occupational impairment. More specifically, although the Veteran was a widower for a period during the appeal following his fourth wife's June 2015 death, he was married to her for the entire time prior to her death and reportedly was her sole caregiver during her illness. In addition, in August 2016, the Veteran reported being in a stable "promising" relationship with a woman from his home in West Virginia he met in 1962 growing up back home. In October 2016, he reported that they had recently married and that he was very happy to have the companionship with his new wife. In addition, at the time of the October 2011 VA examination, the Veteran reported having a fine relationship with his two siblings; during the September 2016 VA examination, the Veteran reported that his three sons lived in close proximity, that he talks to them every three weeks, and that they visit once a month. He also reported that he attended church on Sunday, though this comprised the totality of his social life, and that he was able to do his own grocery shopping late at night. During the October 2018 VA examination, the Veteran reported that although he had no close friends, he had many acquaintances. VA treatment records also indicate that in October 2011, the Veteran reported that he was going to join the senior center and begin working out after deer hunting season. In August 2012 he reported that he had learned to take "me time" by going to a restaurant to eat by himself or going shopping for tractor parts, and he also reported that he was planning a road trip to Florida and Alabama to visit family. In December 2012 the Veteran reported that he had been playing more golf, deer hunting, and fishing, and that he was able to visit family in Florida and Alabama. In May 2014 he shared that he was trying to get emotionally closer to his spouse, stating that he had taken her out to dinner and had been taking her and his grandson camping. The Veteran also attended VA group therapy in August 2011, June 2014, and July 2014. In addition to the evidence that shows that the Veteran's social connections were limited, but not nonexistent, there is no evidence the Veteran has gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or name. Rather, VA and private treatment records dated during the course of the claim indicate the Veteran was consistently alert, oriented, and appropriate in appearance, grooming and hygiene; that speech was intact, stable, normal, within normal limits, relevant, goal-directed, clear and fluent; that thought process was appropriate, normal, logical, clear, goal-directed, coherent, linear, and progressive; and that insight and judgment were more often described as fair to good, though the September 2016 VA examiner reported impaired judgment. There were no signs of psychosis, delusions, or hallucinations. Moreover, the September 2016 and October 2018 VA examiners specifically noted the absence of spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and disorientation to time or place. In sum, the Board finds the severity, frequency, and duration of the symptoms associated with the Veteran's PTSD with alcohol substance use disorder, generalized anxiety disorder, and major depressive disorder more closely approximate the symptoms contemplated by a 70 percent rating. The preponderance of the evidence does not show symptomatology which more nearly approximates total social and occupational impairment. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As a final matter, while a total rating based on individual unemployability (TDIU) may be part of a claim for an increased rating, the Veteran, through his representative, withdrew the pending claim for a TDIU. Thus, no further action is needed. 2. Entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a service-connected condition Under 38 C.F.R. § 4.29, a temporary total (100 percent) evaluation is assigned when it is shown that a service-connected disability has required hospital treatment in a VA or VA-approved hospital for a period in excess of 21 days. VA treatment records reflect the Veteran was admitted to a VA facility for treatment of depression, which is considered part of the service-connected PTSD, on August 15, 2011, and that he was discharged on September 23, 2011. Since this period is greater than 21 days, the Veteran is entitled to a temporary total evaluation under 38 C.F.R. § 4.29. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.