Citation Nr: 21012128 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-08 125 DATE: March 3, 2021 ORDER An initial 70 percent rating, but no more, for posttraumatic stress disorder (PTSD) with major depression and alcohol substance abuse, is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD with major depression and alcohol substance abuse has resulted in occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected PTSD with major depression and alcohol substance abuse is of such severity as to preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent rating, but no higher, for PTSD with major depression and alcohol substance abuse have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This case is on appeal from a rating decision issued in May 2014. This case was previously before the Board in September 2018 and July 2020, when it was remanded for additional development. A January 2021 supplemental statement of the case was most recently issued, and the case is once again before the Board. 1. Entitlement to an initial rating in excess of 50 percent for PTSD with major depression and alcohol substance abuse. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings 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. The Veteran’s PTSD with major depression and alcohol substance abuse, has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, as 50 percent disabling for the entire period on appeal. Based on a review of the record during the appeal period, the Board finds that a 70 percent rating is warranted for his PTSD with major depression and alcohol substance abuse. Under this diagnostic code, a 50 percent rating is warranted when there is occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent 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; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). Effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. A review of the evidence reflects that a rating of 70 percent is warranted for the entire period on appeal. The Veteran underwent an initial VA examination in April 2014. The Veteran reported that he had been divorced twice and his ex was living with him again. The Veteran stated that he could not really name a real close friend. The Veteran reported that he had retired from the railroad in 2009. The VA examiner noted that the Veteran exhibited depressed mood, anxiety, suspiciousness, a chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran had chronic problems with anger at his family and sometimes at supervisors as well as poor sleep (self-medicating with excessive alcohol) since his deployment. VA treatment records reflect psychotherapy treatment. In a June 2014 VA treatment visit the Veteran reported symptoms of being chronically angry and likely to express anger and hostility. He reported that he often loses his temper with little provocation. In a July 2014 VA treatment visit the Veteran reported that he blows up for no reason. In a November 2016 affidavit, the Veteran reported symptoms including: alcohol abuse, intrusive thoughts, guilt and low self-esteem, insomnia, nightmares, paranoia, near total isolation, avoidance, temper, inability to handle everyday stress, poor short term memory, bad judgment, depression (little interest, no motivation), and panic attacks. The Veteran stated that he had retired from the railroad in 2009 because he was of retirement age. However, he noted that at the time of retirement he was having trouble with what he now knows are PTSD symptoms. He reported that he was already drinking a lot and thought it was best for him to retire before he got in trouble with work for drinking too much. He reported that he was drinking about 13 to 15 beers or whiskey shots a day. The Veteran stated that insomnia is still a big problem for him, and his drinking helps him sleep. He reported being paranoid since his time in service and needs to sit anywhere where he can see everyone in the room. He noted that he is uncomfortable in crowds and sometimes evaluates others’ threat level. The Veteran reported that he does not enjoy being around people, although he gets along alright with family. The Veteran stated that since coming back from Vietnam he has a problem his temper and sometimes loses control. He reported that this can happen at anytime. The Veteran stated that since at least 2013 he cannot cope with everyday stressful situations. He reported short term memory issues, depression, and panic attacks. He stated that because of his symptoms and psychiatric manifestations he had occupational and social impairment with deficiencies in most areas of his life since at least 2013. A November 2016 affidavit was additionally submitted from the Veteran’s ex-wife. She reported that since 2013 she had observed the Veteran exhibit the following symptoms: panic attacks, paranoia, near total social isolation, alcohol abuse, temper, inability to handle everyday stress, impulsive buying, poor memory, disturbed sleep, nightmares, and depression (little interest and no motivation). She reported that the Veteran gets pretty nervous and uneasy when he is in public. She stated that since he stopped working, he isolates himself a lot. She reported that he has so much road rage and gets angry really quickly, even when the problem is his own fault. She reported that he has memory problems and sleep issues. She stated that he has very little interest in things he used to like to do and was not motivated to do anything. She reported that although the Veteran sometimes helps out on a farm, it is sporadic and because the farmer is a family friend, he understands the Veteran’s issues. The Veteran underwent an additional VA examination October 2018. The examiner noted that the Veteran had an alcohol use disorder, PTSD, and major depressive disorder. He stated that there was too much overlap in the Veteran’s symptoms, so it is not possible to differentiate what symptoms are attributable to each diagnosis. The Veteran reported that he lived with his ex-wife and their grandson. The Veteran reported that he had not worked since 2013, although sometimes helped a neighbor that had a feed yard. He reported that his primary mental health issue is preventing him from being able to work. The Veteran reported past suicidal ideation. He reported using alcohol excessively. He stated that he can be sober for a few days but then starts drinking again. The Veteran reported the following symptoms: depressed mood, anxiety, suspiciousness, a chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was friendly and polite, and he did not notice any type of concentration or memory issues during the examination. In a March 2020 affidavit, the Veteran’s ex-wife reported that she had observed the Veteran exhibit: anxiety, panic attacks, paranoia, near total social isolation, alcohol abuse, temper with outbursts, inability to handle everyday stress, impulsive buying, poor memory, disturbed sleep, nightmares, and depression (little interest and no motivation). She reported that over the years his behavior has gotten worse and now he gets upset not just with people he knows but with strangers. She reported that if a fast food order is wrong, he loses his mind and starts screaming. She stated that the Veteran treats their grandchild terribly and calls him names. She reported that the Veteran is very anxious all of the time and gets overwhelmed with things and will often drink to cope. The Veteran also submitted a March 2020 affidavit addressing his psychiatric disability. He reported symptoms including: alcohol abuse, intrusive thoughts, guilt and low self-esteem, insomnia, nightmares, paranoia, near total isolation, avoidance, temper, chronic anxiety, inability to handle everyday stress, poor short-term memory, bad judgment, severe depression, and panic attacks. He stated that he had retired from the railroad in 2009 because he was at the retirement age and was drinking a lot. He then noted that he had helped on a feed lot but stopped that about three years prior. The Veteran reported that he sometimes drives cars back and forth to dealerships if he is up for it. He reported that his drinking still continues to be a problem for his general functioning and relationships. He reported that he continues to blow up all the time at little things that do not amount to anything. He reported that despite medication, he still has periods of depression and has thought about suicide. The Veteran underwent an additional VA examination in December 2020. The Veteran reported very severe symptoms of PTSD. He stated that he drinks four or more days a week, with 10 or more drinks at a time. The examiner noted symptoms of the Veteran’s major depressive disorder include depressed mood, feeling down, poor appetite, passive suicidal ideation, restlessness or slowing and feeling badly about himself. The examiner noted that the Veteran’s psychiatric disability results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he has been retired since 2009 and works odd jobs off and on but not enough to make any difference in pay. The examiner noted that the Veteran was appropriately dressed and groomed. He was alert and oriented person, place, time and situation. The examiner noted that the Veteran’s memory appeared to be intact, although his remote memory was not formally assessed. His speech was noted to be normal in rate, volume and tone. His thought process was described as organized and linear. The Veteran denied any psychosis. His insight and judgment were deemed to be fair. The examiner noted that the Veteran’s PTSD symptoms were very severe, his depression symptoms are moderate and alcohol use disorder is severe. The examiner stated that the Veteran is not capable of working most part-time or full-time jobs primarily due to his very severe PTSD symptoms and daily “numbing out” with alcohol. Following a review of the evidence, to include the statements of the Veteran and his family, the Board finds that the Veteran’s service-connected psychiatric disability has been most consistent with a 70 percent disability rating, not the 50 percent disability rating currently assigned. Although some treatment records appear to reflect milder psychiatric symptomatology, the majority of the treatment records are most consistent with a 70 percent disability rating. Accordingly, and based on these findings, the Board finds that a 70 percent rating is warranted. Nevertheless, the Board finds that a rating in excess of 70 percent is not warranted for any period during the pendency of the claim, as the Veteran’s symptomatology does not manifest as total occupational and social impairment, due to such symptoms as (for example only): 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. Id. The Veteran’s reported social functioning has been fairly consistent throughout the period on appeal, with social isolation and some interaction. Thus, while limited, he was still able to continue relationships with some people, including some family. Although he experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment due to his PTSD with major depression and alcohol substance abuse. The Board concludes the criteria for a 100 percent rating for PTSD with major depression and alcohol substance abuse have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9411. His own reports at various evaluations regarding how his service-connected psychiatric disability impacts him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, while the Veteran was significantly socially limited by his service-connected PTSD with major depression and alcohol substance abuse, the evidence fails to show that this impairment was “total” so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran’s PTSD with major depression and alcohol substance abuse, more nearly approximates the rating criteria for a 70 percent rating. As such, a rating of 70 percent is granted, but a rating in excess of 70 percent is not warranted. The Board notes that several of the Veteran’s attorney briefs appear to raise the issue of an extraschedular rating. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether the Veteran’s disability picture requires the assignment of an extraschedular rating. Here, the Board has carefully compared the level of severity and symptomatology of the Veteran’s service-connected psychiatric disability with the established criteria found in the Rating Schedule and finds that his symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the Rating Schedule or that have not been considered in assigning the appropriate rating. The Veteran’s numerous statements and voluminous treatment records reflecting his psychiatric functional limitations, are contemplated by the governing diagnostic code criteria and corresponding regulation. The Veteran has not described, and the treatment records do not show, any unusual or exceptional symptoms associated with his psychiatric disability or described any functional impairment that affects him in an unusual or exceptional manner. As the Veteran’s disability picture is contemplated by the rating schedule, the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, the Board concludes that referral of this case for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) this disability is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 2. Entitlement to TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). TDIU is granted where a Veteran’s service-connected disabilities are rated less than total but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran is now in receipt of a schedular rating of 70 percent for his PTSD with major depression and alcohol substance abuse, for the entire period on appeal. He is additionally in receipt of a 30 percent disability rating for residuals of a gunshot wound to his left shoulder. The Veteran meets the schedular criteria of 38 C.F.R. § 4.16(a). Thus, the issue is whether his service-connected psychiatric disability precludes him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In an August 2016 Veteran’s Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran reported that he had last worked full time in December 2009 as a railroad conductor. He alleged that his psychiatric disability prevents him from securing or following any substantially gainful occupation. The Veteran underwent a June 2017 Vocational Assessment, completed by a vocational consultant. She noted that she had reviewed the Veteran’s VA claims file and conducted an interview with the Veteran. The examiner considered the Veteran’s education and work history. She noted that the records in the claims file are consistent with an individual who is disabled and unable to secure and maintain substantially gainful employment. She reported that she was only considering the Veteran’s psychiatric disability in rendering her opinion. She noted that the Veteran’s psychiatric disability hinders his ability to remain attentive, productive, and reliable on a competitive work schedule. She stated that in order to work at all, he would have to be isolated from co-workers, receive frequent reminders from supervision, and be excused from work more than one day per month. She noted that these limitations are not consistent with substantial, gainful employment. The examiner noted that the Veteran had not performed full-time competitive work since he stopped working as a conductor in 2009. Although she considered that he had done some part-time work from 2009-2013, she noted that the Veteran described this work to be on an occasional basis, only attending work 1-2 days per month. She stated that this schedule is not consistent with substantial gainful employment. She concluded her report noting that it is more likely than not that the Veteran has been unable to secure and maintain substantially gainful employment, even at a sedentary level, since at least 2013. In a December 2020 VA examination, the examiner noted that based on all sources of information the Veteran is not capable of working most part-time or full-time jobs as primarily due to his very severe PTSD symptoms and daily “numbing out” with alcohol. She noted that the Veteran has poor coping skills and instead has resolved to abuse alcohol by choice as he has been unsuccessful in quitting and does not want to face and/or is incapable of dealing with his symptoms at this point through healthier means such as therapy. She noted that he socially isolates and does not get along with others. The examiner noted that the Veteran’s ex-wife had moved out because of his inability/refusal to quit drinking and its impact on her and their thirteen-year-old grandson. The examiner noted that the Veteran drinks all day, but was able to do very part-time work as long as he knew ahead of time so that he would not drink that day or the day before. While he is capable of doing this type of work, he would not do well in a typical work setting working with others and where regular hours were required. The examiner stated that she agreed with the Veteran’s reports that he would not be able to hold down a regular job. The Board notes that since the Veteran left his job at the railroad in 2009, the record reflects that some part-time employment on a sporadic basis. This work history was considered by the opinions of record. Given the impairment produced by his service-connected psychiatric disorder, it appears that the Veteran would not be capable of more than marginal employment in any type of work setting, whether physical or sedentary. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). Thus, the Board will resolve reasonable doubt in the Veteran’s favor and find that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disorder. Thus, entitlement to a TDIU is warranted in the instant case. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.