Citation Nr: 21022765 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-10 804A DATE: April 19, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for other specified trauma- and stressor-related disorder with alcohol use disorder since June 1, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since June 1, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Since June 1, 2016, the Veteran’s other specified trauma- and stressor-related disorder with alcohol use disorder was manifested by symptoms causing occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Since June 1, 2016, the Veteran’s other specified trauma- and stressor-related disorder with alcohol use disorder precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating, but no higher, for other specified trauma- and stressor-related disorder with alcohol use disorder since June 1, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, DC 9499-9411. 2. The criteria for entitlement to a TDIU since June 1, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to November 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office that granted service connection for other specified trauma- and stressor-related disorder with alcohol use disorder and assigned an initial temporary 100 percent rating for hospitalization from April 26, 2016 to May 31, 2016, followed by an initial 30 percent rating beginning June 1, 2016. The Veteran timely appealed the initially assigned 30 percent rating. Entitlement to a 70 percent rating for other specified trauma- and stressor-related disorder with alcohol use disorder since June 1, 2016 is granted. The Veteran contends that his other specified trauma- and stressor-related disorder with alcohol use disorder is more severely disabling than represented by the 30 percent rating assigned since June 1, 2016. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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 other specified trauma and stressor-related disorder with alcohol use disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9499-9411. Under the general formula, a 30 percent evaluation is assigned when the evidence demonstrates 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 assigned where 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 rating of 70 percent is assigned where 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 a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation contemplates 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; memory loss for names of close relatives, own occupation, or own name. Id. The Board observes that 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, including the enumerated factors listed in 38 C.F.R. § 4.130, DC 9499-9411. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id.  On VA examination in November 2016, the only psychiatric symptom described was “suspiciousness.” However, the examiner also noted that the Veteran experienced recurrent distressing dreams, avoidance behaviors, persistent and exaggerated negative beliefs or expectations about himself, others or the world, persistent, distorted cognitions, reckless or self-destructive behavior and clinically significant distress or impairment in social, occupational or other important areas of functioning. The Veteran was noted to have been married for 20 years and denied any recent ongoing discord with his wife or his 3 children though he reported limited social support and no friends. He reported working as a building designer but described a recent history of declining work quality as well as a decline in timeliness and meeting deadlines and stated he had not been employed since February 2016, as he had been engaged in mental health treatment. The examiner summarized the level of occupational and social impairment as 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. In his February 2017 notice of disagreement the Veteran stated that he had panic attacks at least twice per week, would go to the store and forget why he was there, would forget to finish tasks, had frequent unprovoked outbursts of anger at his children and spouse, had trouble expressing emotion and difficulty explaining his anger/frustration with his family. He had impaired judgment, including binge drinking and reckless behavior, such as driving fast. He frequently forgot to bathe and would lock himself in his home for days to avoid being around others. In a February 2017 vocational rehabilitation counseling record the Veteran’s psychiatric symptoms were noted to cause “unable/limited/guarded ability to engage in employment duties that present significant stress, pressure, demanding timeframes, dealing with difficult people, issues with memory and word recall and crowded environments.” A March 2017 VA treatment record documented that the Veteran was seen with acute alcohol intoxication after drinking for three days, as well as pancreatic insufficiency secondary to alcoholism and pancreatitis. In a March 2017 VA Form 9, the Veteran stated that his other specified trauma- and stressor-related disorder with alcohol use disorder prevented him from maintaining employment longer than 3 months, due to feelings of paranoia regarding his coworkers and supervisor, aggressive responses to authority, actively seeking to break rules, using off-color remarks and offensive language, coming to work intoxicated, drinking during break times, leaving work without telling anyone, then not returning to work for days, provoking his supervisor and other employees, lying about work progress, not tracking time, forgetting tasks, poor work quality, and not following directions. In an August 2018 statement, the Veteran reported that his wife was living separately. A February 2019 VA treatment record noted the Veteran was drinking about 5 beers once per week. At his February 2021 Board hearing, the Veteran described psychiatric symptoms including violent nightmares where he would punch and kick and jump out of bed almost every night, requiring his wife to sleep in a separate room. He reported forgetting to complete tasks which greatly affected his employment. He reported self-medicating his psychiatric symptoms with alcohol until 2018 or 2019. The Veteran reported needing to be reminded by his wife and children to attend to hygiene needs. With regard to the period since June 1, 2016 the Board finds that a 70 percent rating is warranted. The November 2016 VA examination and the Veteran’s statements present deficiencies in “most areas,” including work, school, family relations, judgment, thinking and mood. In this regard, the record demonstrates numerous psychiatric symptoms interfering with work, including paranoia, irritability, inability to complete tasks, and reckless behaviors including drinking and not showing up for work. The Veteran reported irritability and distressing dreams which interfered with his relationship with his wife which constitute deficiencies in the area of family. The November 2016 VA examiner noted reckless or self-destructive behavior, and the Veteran has reported binge drinking and driving too fast which constitute deficiencies in judgment. The November 2016 VA examiner noted distorted cognitions, and the Veteran has reported feelings of paranoia which impact his ability to maintain employment and constitute a deficiency in thinking. Finally, the November 2016 VA examiner noted persistent and exaggerated negative beliefs or expectations about himself, others or the world, and the Veteran has reported depression, panic attacks and unprovoked irritability which constitute deficiencies in mood. The reported symptoms reasonably approximate the type of symptoms stipulated as warranting a 70 percent rating, including impaired impulse control, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances. On balance, this evidence is at least in equipoise as to whether the other specified trauma- and stressor-related disorder with alcohol use disorder symptoms caused deficiencies in “most” areas throughout the period on appeal. However, the other specified trauma- and stressor-related disorder with alcohol use disorder symptoms do not more nearly approximate the severity of symptoms stipulated as supporting a 100 percent rating at any time during the appeal period. The evidence preponderates against finding that any psychiatric symptoms caused total social impairment. In this regard, while the Veteran has reported significant difficulties establishing and maintaining family and personal relationships, the evidence indicates that he has maintained a relationship with his wife and children throughout the appeal period. This evidence thus preponderates against finding total occupational and social impairment necessary to support a 100 percent rating. Accordingly, based on the foregoing evidence, entitlement to a 70 percent rating, but no higher, for other specified trauma- and stressor-related disorder with alcohol use disorder since June 1, 2016 is granted. Entitlement to a TDIU since June 1, 2016 is granted. As discussed above, in his March 2017 VA Form 9, the Veteran contended that he was unable to maintain employment for longer than 3 months due to his other specified trauma- and stressor-related disorder with alcohol use disorder. The issue of entitlement to an increased rating for other specified trauma- and stressor-related disorder with alcohol use disorder is currently before the Board, to include consideration of the period since June 1, 2016. The issue of entitlement to a TDIU since June 1, 2016 is therefore part of the claim for increased rating before the Board. Ricev. Shinseki, 22 Vet. App. 447 (2009). A TDIU is authorized for any disability or combination of disabilities where the schedular rating is less than total, and the claimant is unable to secure and maintain substantially gainful employment because of the severity of service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. If two or more disabilities, at least one must be rated as at least 40 percent disabling, with sufficient additional service-connected disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). For the above purpose, VA will consider disabilities resulting from common etiology, a single accident, or affecting a single body system as one disability. 38 C.F.R. § 4.16 (a). For a TDIU, the critical question is whether the veteran’s service-connected disabilities alone are sufficient to cause unemployability, absent consideration of any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include her employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Since June 1, 2016, the Veteran other specified trauma- and stressor-related disorder with alcohol use disorder was service-connected and rated 70 percent disabling. Thus, the appellant met the schedular requirements for a TDIU since June 1, 2016. 38 C.F.R. § 4.16. At his November 2016 VA examination, the Veteran reported that he had not worked since February 2016 due to mental health treatment. As discussed above, in his March 2017 VA Form 9 the Veteran reported being unable to maintain employment for more than 3 months, and attributed his difficulties to feelings of paranoia regarding his coworkers and supervisor, aggressive responses to authority, actively seeking to break rules, using off-color remarks and offensive language, coming to work intoxicated, drinking during break times, leaving work without telling anyone then not returning to work for days, provoking his supervisor and other employees, lying about work progress, not tracking time, forgetting tasks, poor work quality, and not following directions. At his February 2021 Board hearing, the Veteran stated that he had last worked full time from January 2017 through the Spring of 2017 doing electrical substation design. He also noted “another instance where I started in November and was fired by January” though it is not clear what year this period of employment took place. The Veteran reiterated that he believed that his other specified trauma- and stressor-related disorder with alcohol use disorder contributed significantly to his unemployability, but also noted significant occupational impairment due to non-service connected disabilities which he asserted precluded manual labor. In this case, the evidence of record is at least in equipoise as to whether the Veteran’s other specified trauma- and stressor-related disorder with alcohol use disorder alone precluded all forms of substantially gainful employment since June 1, 2016. The evidence indicates that the Veteran sustained only brief periods of employment during this time. While the Veteran partly attributed his unemployability to non-service connected disorders, the Board finds that the level of impairment described in the March 2017 VA Form 9 alone would reasonably preclude any form of substantially gainful employment. The November 2016 VA examiner attributed similar symptoms to the Veteran’s other specified trauma- and stressor-related disorder with alcohol use disorder including suspiciousness, avoidance, reckless or self-destructive behavior and clinically significant distress or impairment in social, occupational or other important areas of functioning. The February 2017 vocational rehabilitation counseling record also corroborates that the other specified trauma- and stressor-related disorder with alcohol use disorder was productive of significant occupational impairment. As the Veteran’s lay description of his symptoms and occupational impairments are significantly corroborated by the VA examination and vocational rehabilitation counseling record, the Board attributes great probative value to those lay statements. As the evidence is at least in equipoise, entitlement to a TDIU since June 1, 2016 is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.