Citation Nr: A21020673 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 190311-4262 DATE: December 30, 2021 ORDER The appeal of entitlement to a disability rating more than 70 percent from January 9, 2019 for posttraumatic stress disorder (PTSD) to include alcohol use disorder is dismissed. Entitlement to a 50 percent disability rating for PTSD to include alcohol use disorder prior to January 9, 2019 is granted. FINDINGS OF FACT 1. During the April 2021 Board hearing, the Veteran withdrew his appeal concerning the issue of entitlement to a disability rating more than 70 percent for PTSD to include alcohol use disorder from January 9, 2019. The decision was informed and voluntary. The withdrawal has been reduced to a writing. 2. For the rating period prior to January 9, 2019, the Veteran's PTSD to include alcohol use disorder more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to a disability rating more than 70 percent for PTSD to include alcohol use disorder from January 9, 2019 have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2020). 2. For the rating period prior to January 9, 2019, the criteria for a 50 percent rating, but no higher, for PTSD to include alcohol use disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1968 to December 1970. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review on or after February 19, 2019. The Board is honoring the Veteran's choice to participate in VA's test program, the Rapid Appeals Modernization Program (RAMP). By a filing of February 2018, the Veteran elected RAMP's supplemental claim option. Thereafter, in a January 2019 rating decision, the RO awarded the Veteran a 70 percent disability rating for his PTSD to include alcohol use disorder effective January 9, 2019. The Veteran then elected RAMP's hearing option in March 2019. As of October 1, 2018, the Board is adjudicating RAMP appeals based on a notice of disagreement filed with respect to a rating decision that adjudicated a RAMP supplemental claim, as is the case here. In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. During the April 2021 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of increased rating claims; identified potential evidentiary defects which included the severity of the Veteran's PTSD with alcohol use disorder; clarified the type of evidence that would support the Veteran's claim; enquired as to the existence of potential outstanding records; and held the record open for 90 days to allow for the submission of evidence. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. Withdrawn Appeal Higher evaluation for PTSD to include alcohol use disorder from January 9, 2019 An appeal may be withdrawn in writing as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2020). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the April 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to a disability rating more than 70 percent for PTSD to include alcohol use disorder from January 9, 2019. Indeed, the Veteran specifically stated that he was satisfied with the 70 percent disability rating from January 9, 2019. See the April 2021 Board hearing transcript, page 2. The Veteran's full understanding of the consequences are shown based on his affirmation that the claim was withdrawn and no longer on appeal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, the Board finds there remains no allegation of errors of fact or law for appellate consideration concerning this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. Increased Rating Higher evaluation for PTSD to include alcohol use disorder prior to January 9, 2019 Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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 (2020). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD to include alcohol use disorder has been assigned a 30 percent rating prior to January 9, 2019 under 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD to include alcohol use disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent rating requires 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; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent rating requires 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 inability to establish and maintain effective relationships. Id. 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; or difficulty in establishing effective work and social relationships. Id. A 30 percent rating requires 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). A 10 percent rating requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in May 2019; therefore, the claim is governed by DSM-5. The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). Accordingly, any GAF scores assigned are not relevant for consideration in this appeal. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was provided a VA examination in April 2016. The examiner noted the Veteran's mental health impairment was manifested by 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 that he had been married to his wife for the past 47 years and explained that he was irritable with his wife at times. He had two children and had a "good" relationship with them. He maintained contact with his surviving siblings. He did not have friends or leisure activities. He had been retired for the past four years and was employed as a technician. The examiner noted mental health symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Board further notes that VA treatment records, in particular records dated in 2016 and 2017, document the Veteran's mental health treatment as well as participation in group therapy. The Veteran noted his sleep impairment and panic attacks. (Parenthetically, the Board finds that these VA treatment records were constructively before VA on the date they were created even though not associated with the record until July 13, 2019 (i.e., after the record closed on January 30, 2019), because, VA had knowledge of their existence before the record closed. See 38 C.F.R. §§ 3.3103(c)(2) and (c)(2)(iii); Bell v. Derwinski, 2 Vet. App. 611 (1992).) During the April 2021 Board hearing, the Veteran and his wife testified that prior to January 9, 2019, he experienced social isolation other than his wife and immediate family, sleep impairment, irritability, and memory loss. Based on the foregoing, the Board finds that a 50 percent rating is warranted for the Veteran's PTSD to include alcohol use disorder prior to January 9, 2019. In this regard, the Board finds that the impact of the Veteran's PTSD to include alcohol use disorder on his social and industrial functioning is sufficient to approximate the degree of impairment contemplated by a 50 percent rating during this period. See 38 C.F.R. § 4.7 (2020). Criteria for the assignment of a 50 percent rating, which have arguably been met or approximated include panic attacks, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. The Board also finds that the evidence as whole indicates that the Veteran's PTSD to include alcohol use disorder traits also include sleep impairment, hyperarousal, intrusive thoughts, feelings of isolation, and hypervigilance. In consideration of these symptoms with the Veteran's other PTSD to include alcohol use disorder symptoms, the Board finds that these criteria approximate a 50 percent disability rating. As such, given the actual psychiatric symptoms shown in this case, the Board finds that level of overall psychiatric impairment is shown to be consistent with a 50 percent rating. However, the Board finds that prior to January 9, 2019, the Veteran is not entitled to a higher disability rating for his PTSD to include alcohol use disorder. In this regard, the Board notes that the Court of Appeals for the Federal Circuit (Federal Circuit) held in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) that "in the context of a 70 percent rating, § 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 Board acknowledges the Veteran's report of irritability and difficulty getting along with others as well as panic attacks. The Board further notes the Veteran's and his wife's testimony during the April 2021 Board hearing that his symptoms which warranted a 70 percent disability rating from January 9, 2019 were not absent prior to that date i.e., there was not a worsening of symptoms on January 9, 2019. In this regard, the Veteran and his wife testified the April 2016 VA examination results did not accurately demonstrate the severity of the Veteran's PTSD to include alcohol use disorder because the Veteran's wife was not available to document the Veteran's symptoms. However, prior to January 9, 2019, the evidence of record which in addition to the April 2016 VA examination also included VA treatment records does not show findings of obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure or irrelevant; spatial disorientation, and neglect of personal appearance and hygiene. The Veteran also denied suicidal and homicidal ideation. Moreover, prior to January 9, 2019, the Veteran reported having a good relationship with his children and siblings. As such, while the Board acknowledges the Veteran's social impairment, the evidence does not indicate an inability to establish and maintain effective relationships prior to January 9, 2019. In light of the foregoing, the Board concludes that, while the Veteran demonstrates some of the criteria listed for a 70 percent disability rating, the evidence of record does not show that his overall level of severity more closely approximates the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130 prior to January 9, 2019. Moreover, there are no other factors which would lead the Board to conclude that a 70 percent disability rating is warranted for this period. Rather, his level of functioning is greater than that contemplated by the 70 percent rating category. The Board also finds that the finds that a 100 percent disability rating is not warranted for the Veteran's PTSD to include alcohol use disorder prior to January 9, 2019. While the Board accepts that the Veteran's PTSD to include alcohol use disorder traits significantly affect his functioning, the lay and medical evidence of record does not demonstrate both total occupational and social impairment. There were no findings of 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, disorientation to time or place, or memory loss for names of close relatives or own name. On the contrary, the Veteran was found to be oriented, was not suicidal/homicidal, and no psychotic symptoms were present. He also has overall been found to have appropriate thought process and communication and has been oriented to time and place. As such, the Board finds that the record as a whole does not support the existence of symptoms such that there is total occupational and social impairment. The Board further notes that as indicated above, the evidence of record reflects that the Veteran has symptomatology including sleep impairment, hyperarousal, intrusive thoughts, feelings of isolation, and hypervigilance. These symptoms are fully contemplated in the assigned evaluation. However, the Board finds that such symptoms do not more nearly approximate a 100 percent rating as they are not of such a severity or frequency to result in total occupational and social impairment. The Board further finds the VA examination findings in particular to be of great probative value in that the examiner did not indicate that the Veteran's psychiatric disorder was manifested by total occupational and social impairment. Based on all of the above, the Board finds that a 50 percent disability rating is warranted prior to January 9, 2019. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.