Citation Nr: 21016104 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-49 949A DATE: March 19, 2021 ORDER Prior to March 7, 2017, a rating in excess of 30 percent for posttraumatic stress disorder with alcohol use disorder (PTSD) is denied. From March 7, 2017, to October 16, 2020, a rating of 70 percent, but no higher, for PTSD is granted, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to March 7, 2017, the Veteran’s PTSD was manifested by symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. From March 7, 2017 to October 16, 2020, the Veteran’s PTSD was manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe symptomatology more nearly approximating total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to March 7, 2017, the criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From March 7, 2017 to October 16, 2020, the criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to September 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the claim for additional development. While on remand, an October 2020 rating decision awarded the Veteran a 100 percent rating for his PTSD, effective October 16, 2020. As such is the highest possible rating for such disability, the Veteran’s claim for an increased rating for such disability is moot as of such date. Consequently, the Board has recharacterized the issue as shown on the title page. The case now returns for further appellate review. Entitlement to a rating in excess of 30 percent prior to March 7, 2017, and in excess of 70 percent thereafter for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155, 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on April 10, 2013, the date the Veteran was hospitalized for treatment of his PTSD, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For such appeal period, his PTSD is evaluated as 30 percent disabling prior to October 16, 2020, and 100 percent disabling thereafter pursuant to Diagnostic Code 9411, which provides that such disability is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula) at 38 C.F.R. § 4.130. In this regard, a 30 percent rating is provided for when there is 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; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. The Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula “indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (August 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Turning to the evidence of record, the Veteran was hospitalized in April 2013 for two days following a concern for his alcohol consumption. The discharge summary report reflects that the Veteran’s PTSD was under good control. However, it was noted that he had additional stresses in his life that were exacerbating some of his PTSD symptoms. In this regard, it was observed that he had been experiencing increasing anxiety and depression over the past few months. While he denied experiencing panic attacks, he felt he was getting close to that point, and reported difficulty sleeping. In regard to his PTSD, it was observed that he had depressed mood, irritability, rapid mood fluctuations, and anxiety. Mental status examination revealed that the Veteran was oriented in all three spheres, and was neat, clean and dressed appropriately. Speech was clear and understandable, thought processes were logical and goal-directed, and judgment and insight were adequate. Also, while his mood was pleasant, the Veteran was slightly anxious. VA treatment records dated from May 2013 to November 2013 reflect that the Veteran’s ongoing complaints of depression, anxiety, intrusive memories, and nightmares. However, he also reported that he received a promotion and was adjusting well in his new assignment. Mental status examinations during this period revealed that the Veteran was oriented in all three spheres, neat and clean, dressed appropriate, his speech was clear and understandable, thought processes were logical, and there was no indication of disturbances, mania, or suicidal thoughts. At a December 2013 VA examination, the Veteran reported symptoms of anxiety, panic attacks more than once a week, and chronic sleep impairment. Specifically, he described significant initial insomnia and middle of the night awakenings with occasional dreams. He also stated that he was having 3 panic attacks a week on average, recently requested a lower stress position at his job, was experiencing more depression, and had dropped some hobbies. In regard to his social functioning, it was noted that he had been married to his current spouse for 15 years and had four children, and maintained good relationships with them. The Veteran also maintained full-time employment as a Veteran Equitable Resource Allocation (VERA) analyst at VA, which is a non-supervisory front office position. The examiner found that his PTSD resulted in 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 medication. VA treatment records from May 2015 and May 2016 indicate the Veteran was seen for annual appointments with his primary care physician. At the time, he reported that he continued to live with his wife and children, was employed as a VERA coordinator at the VA facility, and did medical mission work in Central America. However, VA treatment records indicate that the Veteran was hospitalized in March 7, 2017, for alcohol use treatment with almost 20 subsequent hospitalizations for treatment of his PTSD symptoms, specifically related to alcohol use and withdrawal. VA treatment records from April 2017 reveal the Veteran’s alcohol consumption to be out of control, and he had tremendous anxiety and depression in regard to his impending divorce. However, he reported that he was still employed and had good relationships with his co-workers. In October 2018, the Veteran reported that he was having withdrawal symptoms at work, and in November 2018, following a hospitalization for alcohol use withdrawal, the Veteran was informed that he would need a doctor’s note before returning to work. At such time, he also reported a panic attack, flashbacks, and hallucinations earlier in the month. Following detoxification, he remained sober until March 2019, at which time he relapsed. He also reported increased symptomatology manifested by no sleep, hypervigilance, and pacing during the night. The Veteran was also depressed, only had supervised visitation with his children, and, while he was working, his drinking had led to job-related concerns. A few days later, he reported that he slept well, had a good visit with his children, and was planning on returning to work in two days. Mental status examination was normal with dysphoric mood and blunted affect. In June 2019, the Veteran reported that he was becoming closer with his girlfriend, had been attending functions at church, and was going to visit his girlfriend’s daughter for her birthday that weekend. In October 2019, the Veteran reported relapses with alcohol, depression, flat affect, anxiety, hypervigilance, intrusive thoughts, avoidant behavior, and nightmares, but maintained a relationship with his children, had been in nine relationships since his marriage ended, and was still working. Similarly, at the October 2019 Board hearing, the Veteran reported that he was having issues at work and is in jeopardy of losing his job because of his frequent panic attacks and inability to sleep. The Veteran further testified that he and has spouse had filed for divorce in 2017 after 23 years of marriage, his relationship with his children had become strained, and he was unable to maintain a romantic relationship. Further, in December 2019, his sister submitted a statement in which she indicated that the Veteran moved in with her because his life has become unmanageable as he is forgetful, impulsive, obsessive, uses poor judgment, and experiences hallucinations and sleep disturbances. She further indicated that he recently had suicidal thoughts and was hospitalized following a suicide attempt. In December 2019, VA treatment records reflect a relapse with alcohol and hospitalization for alcohol detoxification and suicidal ideation following a binge drinking episode with a friend. Mental status examination was normal with the exception of insight and judgment, which were chronically impaired. In January 2020, the Veteran reported having a good relationship with his children and had been in a relationship with a woman for 9 months that recently ended. He described experiencing anxiety, panic attacks, sleep impairment, and impulsivity. Mental status examinations from December 2019 to August 2020 were normal, and records reflect that the Veteran remained employed at VA during such time period and reference was made to his ongoing relationship with his children and at least one friend. Pursuant to the January 2020 remand, the Veteran underwent a VA examination on October 16, 2020, which is the basis for his 100 percent rating. As relevant to the appeal period prior to such date, he reported that he and his spouse separated in 2016 and were divorced in 2017, and he had worked at VA until August 2020 when he retired. In this regard, he indicated that he was going to be terminated due to missing work and unexcused absences, so he retired. Nonetheless, he reported that he was able to maintain his ability to work as he worked mainly by himself, to include at home, with little interactions with others. The Veteran further indicated that he experienced suicidal ideation in 2020 and had been hospitalized numerous times for psychiatric symptomatology and/or alcohol treatment. Following a full review of the record, the Board finds that a rating in excess of 30 percent for the Veteran’s PTSD for the appeal period prior to March 9, 2017, is not warranted. In this regard, the record reflects that, during such time, his PTSD was manifested by symptomatology, to include depression, anxiety, panic attacks more than once a week, chronic sleep impairment, nightmares, intrusive memories, flashbacks, mood fluctuations, and irritability, which resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods or inability to perform occupational tasks. In this regard, the entirety of the Veteran’s PTSD symptomatology, with the exception of the frequency of his panic attacks, is contemplated in the currently assigned 30 percent rating under the General Rating Formula. With respect to the frequency of his panic attacks, which he reported occurred more than once a week, which is noted to a symptom indicative of a 50 percent rating, the Board finds that the nature, frequency, severity, and duration of such symptomatology does not result in occupational and social impairment with reduced reliability and productivity. Specifically, in regard to social functioning, the record reflects that, during relevant period, the Veteran maintained a good relationship with his spouse until they separated in 2016, and his children, and performed medical mission work in Central America. Furthermore, he remained employed with VA for the entire appeal period and had been promoted in 2013. While he opted to request a lower stress position, the record reflects that he successfully maintained such position. Moreover, in consideration of the totality of the Veteran’s reported symptomatology, to include the frequency of his panic attacks, the December 2013 VA examiner found that the Veteran’s PTSD resulted in 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 medication, which is consistent with a 10 percent rating under the General Rating Formula. Thus, the Board finds that a rating in excess of 30 percent for the Veteran’s PTSD prior to March 7, 2017, is not warranted. However, as of such date, the Board resolves all doubt in the Veteran’s favor and finds that his PTSD symptomatology had increased in severity so as to warrant a 70 percent rating. In this regard, the Board notes that such rating is assigned as of the date of the Veteran’s first hospitalization for alcohol detoxification following a long period of sobriety. Moreover, VA treatment records beginning such date reflect an increase in the Veteran’s PTSD symptomatology of anxiety and depression due to his impending divorce, which was finalized in 2017, panic attacks, flashbacks, hallucinations, hypervigilance, intrusive thoughts, avoidant behavior, sleep impairment, impulsivity, and suicidal ideation. Additionally, the Veteran divorced in 2017, had difficulty maintaining a romantic relationship, and retired in August 2020 due to an impending termination due to missing work. Based on the foregoing, the Board finds that, for the period beginning March 7, 2017, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, which warrants a 70 percent rating under the General Rating Formula. However, a 100 percent rating is not warranted for the Veteran’s PTSD prior to October 16, 2020, as the evidence does not show total occupational and social impairment. Specifically, the evidence does not indicate that the Veteran’s PTSD resulted in 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, which are symptoms indicative of a 100 percent rating under the General Rating Formula. Moreover, the evidence shows that, while the Veteran had difficulty maintaining a romantic relationship, he was able to enter into such relationships and maintain them for a period of time. He also continued to enjoy a good relationship with his children and sister, had at least one friend, reported good relationships with his co-workers, and attended church functions. Furthermore, he worked full-time until August 2020 when he retired and, while he reported that he retired due to an impending termination due to missing work, he was nonetheless able to work as he did so by himself with limited interaction with others. Thus, the Board finds that a 100 percent rating for the Veteran’s PTSD is not warranted prior to October 16, 2020. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that his symptomatology has been stable throughout the periods on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in the award of a 70 percent rating for his PTSD from March 7, 2017, to October 16, 2020. However, insofar as the Board has denied a rating in excess of 30 percent prior to March 7, 2017, or in excess of 70 percent thereafter for such disability, the preponderance of the evidence is against such aspects of the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable and such increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.