Citation Nr: 21075339 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-36 836 DATE: December 20, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) and alcohol abuse disorder is granted. FINDING OF FACT The Veteran's PTSD has been productive of symptoms of severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial 70 percent rating, but no higher, for PTSD and alcohol abuse disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1977 to March 1982 and from January 1983 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), in Reno, Nevada. This matter was previously before the Board in August 2021 when the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Increased Rating for PTSD Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's service-connected PTSD has been evaluated under 38 C.F.R. § 4.130, DC 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. 38 C.F.R. § 4.130. Under that code, a 50 percent rating is provided 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided 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. 38 C.F.R. § 4.130. A 100 percent rating is provided 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 of the veteran 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. 38 C.F.R. § 4.130. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). To adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole and the enumerated factors listed in 38 C.F.R. § 4.130. Mauerhan, 16 Vet. App. at 436. 1. Entitlement to an initial 70 percent rating, but no higher, for PTSD and alcohol abuse disorder, is granted. The Veteran was granted service connection for PTSD in a June 2018 rating decision, at a 50 percent disability evaluation, effective July 13, 2016, the date his claim was received. In June 2019, the Veteran filed a Notice of Disagreement (NOD) specifically seeking a 70 percent disabling evaluation for his PTSD, culminating into his current appeal. The RO cites as the basis for its 50 percent rating, a February 2018 initial PTSD VA examination. The Veteran was also subsequently afforded another VA PTSD examination in September 2019 and has submitted a comprehensive private PTSD evaluation conducted in August 2020, pertinent aspects of which are all respectively discussed below. February 2018 Initial PTSD examination During the Veteran's initial examination, the examiner diagnosed the Veteran with PTSD and mild Alcohol Abuse Disorder, deemed to be in early remission. With regards to his behavioral observations, the examiner reported that the Veteran was well-groomed and casually dressed; cooperative, articulate, and that his speech rate and speed were normal; that he exhibited a somewhat limited range of mood and affect; he was alert and orientated to time and place, he was able to answer questions and recall his most aspects of his past without difficulties. Further, that the Veteran exhibited good insight and judgment and denied any suicidal/homicidal ideation. However, the examiner also reported that the Veteran reported having poor recollection of certain times and events. The following symptoms were noted: chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events; difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. The Veteran reported ongoing struggles with relationships, specifically, that he has not had any meaningful romantic relationships in the last 30 years. He described his relationships with his family as "bad" and that they have no contact with him; that has never been married and that he does not have any children. The Veteran also reported that does not have any close friends; that he has been homeless on and off since for about 4 years ago and currently resides at the Salvation Army. He also reported having many different types of jobs, and that his current line of work is working as a janitor, which helps to limit his interaction with people. The examiner opined that the Veteran's symptoms reflect an occupational and social impairment with reduced reliability and productivity and that he does not appear to pose any threat of danger or injury to self or others. September 2019 PTSD examination During this examination, the Veteran's alcohol use disorder was now deemed moderate, and no longer in remission, but that there were no significant notable changes reported with regards to the severity of the Veteran's PTSD symptoms. The Veteran reported that he had been homeless for the past year and was currently living with a friend. He admitted to sometimes having suicidal ideations, but with no plan or intent; that in unfamiliar circumstances he has minor panic symptoms and that he argues frequently, but denied violence or aggression In terms of behavioral observations, the examiner's report was similar to that reported during the Veteran's the prior exam in February 2018 - adequately groomed and casually dressed, no abnormalities of gait or coordination, was cooperative; had good eye contact; speech was normal rate and volume, no evidence of delusions or obsessions, thought processes were linear; judgment and insight deemed fair; intellectual ability average, and his mood was dysthymic and affect was appropriate. With regards to his symptoms, the following were noted: anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. August 2020 Confidential Psychiatric Evaluation The Veteran's private psychiatrist, Dr. B.M.B. stated that her report was based on an in-person evaluation of the Veteran and a review of his medical files, including his September 2019 VA examination. The examiner's overall assessment was that the Veteran was demonstrating severe impairment in most areas, including home, work, socially, mood and motivation; she described the level of his PTSD as chronic and severe, finding that the Veteran should be entitled to at least a 70 percent rating based on his evaluation. Dr. B.M.B. determined that the reported symptoms during the Veteran's prior VA examinations were too vague and did not fully explain the depth and severity of the Veteran's symptoms, thus, determined that they are limited in scope. Further, Dr. B.M.B. also confirmed that the Veteran is experiencing all the symptoms noted in his September 2019 VA PTSD examination, but that with more severity and frequency than reported. Specifically, she cited to the level of anxiety reported by the Veteran, resulting in panic attacks, his lack of trust of everyone, his chronic sleep impairment, which is related to his nightmares of relieving his stressors. Also, that the Veteran is socially isolated as he only has one friend and has not had a romantic relationship in 22 years; that he sometimes has periods of sustained memory loss. It was also noted that the Veteran's test results reflect a high level of depression, anxiety and that he continuously struggles to manage his mood. Finally, that the Veteran's lengthy history of leaving employments due to conflicts, and his panic attacks that correlates with stressful settings, establishes his continuous difficulty adapting to stressful settings. Analysis Upon a holistic review of the evidence of record, the Board finds that the overall evidence of record shows that the Veteran suffers from a broad spectrum of symptoms ranging from anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships throughout the period of appeal, and that the level of severity and frequency of his symptoms have resulted in impairment in most areas throughout the pendency of the appeal. Although the characterization of such was respectively determined as occupational and social impairment with reduced reliability by the June 2018 and September 2019 VA examiners, the Board has given a higher probative weight to the more thorough psychiatric assessment of Dr. B.M.B., whose finding is that an evaluation of a 70 percent disability rating is warranted in this case. As referenced above, Dr. B.M.B., cites to specific examples, highlighting the frequency and severity of such incidences to support his rating. The evidence of record also reflects that the Veteran has exhibited continuous symptoms of depression and anxiety that adversely affects his ability to function appropriately and effectively, particularly to establish and maintain effective relationships. To this point, the Veteran testified during the August 2021 Board hearing that he has anger issues that causes frequent arguments with fellow employees, resulting in him changing several jobs. Further, that he does not trust anyone, he is jumpy, constantly checking to make sure doors are locked and secured, and that he has been experiencing these symptoms for a long period of time. Consequently, after taking into consideration the frequency, severity, and duration of the Veteran's impairment, the Board finds that the evidence demonstrates that the Veteran's disability due to PTSD most nearly approximated the schedular criteria for a rating of 70 percent rating throughout the period of appeal. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). However, the Board further finds that a 100 percent rating is not warranted in this case as the Veteran's PTSD has not resulted in total social impairment based on the report of the Veteran maintaining an ongoing relationship with at least one friend. Also, during his Board testimony, the Veteran acknowledged that he has positive social interactions that involves music, reporting that he plays music, sometimes by himself, but that at other times he records music in a studio with two other musicians, noting that he is musically gifted. In addition, the Veteran, through his attorney has also acknowledged that he is not specifically seeking a 100 percent, noting that in fairness, he believes that evidence of record will probably not support a 100 percent rating. The Board agrees with this current assessment. Therefore, as the Veteran's symptoms has been shown to reflect occupational and social impairment, with deficiencies in most areas, a 70 percent rating, but no higher, is warranted in this case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.