Citation Nr: 21026211 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-24 872A DATE: April 30, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol use is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s PTSD with alcohol use has been characterized at most by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD with alcohol use have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from February 1998 to May 1998, and from January 2003 to April 2004. This matter was before the Board in March 2019 when it was remanded for additional development. In March 2019, the Board also remanded the Veteran’s claim for entitlement to service connection for a left knee disability. In a May 2020 rating decision, service connection for the left knee was granted; this represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). 1. Entitlement to a rating in excess of 50 percent for PTSD with Alcohol Use Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, if they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a rating of 50 percent is warranted for a ment al disorder that results in 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 warranted for a mental disorder that results in 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 rating is assigned when the condition results in 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 symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). However, “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). A January 2014 rating decision awarded the Veteran an initial 50 percent rating effective February 20, 2013. Treatment records from approximately 2004 to present note the Veteran participated in group and individual therapy for PTSD. The Veteran was provided a VA examination in January 2014. The examiner diagnosed PTSD and severe alcohol use disorder. The examiner indicated she could not separate the symptoms of the Veteran’s mental disorders because “[i]t is unclear what role his Alcohol Use plays in his overall psychiatric condition since he has not had a distinct period of sobriety since he was ordered to treatment 2006/2007.” The examiner noted overall “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 indicates a 10 percent disability. On interview, the Veteran reported that after returning from Iraq, he was unable to control his anger. He began drinking excessively and argued with his wife constantly. There were domestic abuse allegations, but no charges were filed. He was ordered into an alcohol treatment program at his job as a DC police officer and was currently on desk duty pending a recent alcohol related incident. It was noted his PTSD symptoms had a mild impact on his current level of social and job functioning. On mental status evaluation, the Veteran was noted to be cooperative, neatly dressed, agitated with an anxious mood and with a restricted affect. No obvious impairment of thought process or communication was noted. No delusions or hallucinations were present, and the Veteran had appropriate behavior during the interview. He was found to be oriented in all respects, with occasional panic attacks and sleep disturbance. PTSD symptoms listed included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or worklike settings, and impaired impulse control such as unprovoked irritability with periods of violence. In a lay statement received in April 2014 the Veteran reported difficulty with everyday lifestyle things such as dealing with people who surround him on a daily basis, uneasiness, nervousness, high anxiety, fear and depression, difficulty sleeping, being irritable and easily agitated towards those around him, and isolating himself. He reported getting nervous and uneasy such that his speech might become unclear and he had difficulty expressing his thoughts or feelings. He reported he was facing suspension at work due to his alcohol abuse and reported having difficulty dealing with this and experiencing unclear thinking, racing thoughts, being nervous and worrying about everything that may or may not happen in his life. A VA medical report from March 2014 noted that it was recommended he remain in individual and group therapy indefinitely given the intractable nature of his PTSD, but that he was cooperative and motivated in group work and did exceptionally well in individual therapy. It was noted further that he was insightful and articulate, that the PTSD symptoms continued to plague him, and that he benefited from the group support of his peers. A later March 2014 VA treatment record acknowledged the Veteran had been sober since January 9, 2014. A February 2020 VA examination report noted a diagnosis of both PTSD and alcohol use disorder. The examiner indicated that the symptoms from these mental diagnoses resulted in “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 normal)”. This is indicative of a 30 percent disability. The examiner noted that according to a VA treatment record in December 2018, the Veteran was doing “okay”, had started going to a gym which helped with his energy levels and sleep, and reported having some flashbacks although no acute issues. In an April 2019 VA treatment record, the Veteran reported feeling “better” with two nightmares and “two or three flashbacks” since his last visit. The examiner noted that according to the January 2014 VA examination report, the Veteran had a good relationship with his family, which consisted of both parents and a sister. The examiner also noted that the Veteran was employed as a police officer. During the current evaluation, the Veteran reported difficulty staying asleep and receiving up to five hours of sleep of night. He had nightmares around six times a month and used melatonin and alcohol to sleep. On mental status examination, the Veteran was noted to have symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The examiner further noted the Veteran was appropriately dressed, cooperative throughout the evaluation, and was alert and oriented. His speech was normal in rate, rhythm, and volume. His thought process was linear and coherent. His mood reportedly varied with sleep, but can be irritable, distance and non-confrontational. His affect was anxious. His thought process was void of overt delusional ideation and his cognitions were grossly intact. The Veteran’s most recent VA treatment records show that in January 2020, he reported having had a good time with family for the holidays. He also reported having two nightmares since his last visit, flashbacks, and sleep that was “okay.” In March 2020, the Veteran had a tele-mental health visit with his mental health provider. He reported no acute issues, a stable mood, two nightmares since his last visit, and on-and-off flashbacks. He also reported going to the gym regularly. On mental status examination, the Veteran was calm, cooperative, and casually attired. His eye contact was fair, his speech was coherent and goal-directed, and there was no psychomotor agitation/retardation or abnormal moment. The Veteran described his mood as “good,” and his affect was found to be appropriate. His thought process was goal-directed and his thought content was absent of suicidal/homicidal ideation, plan, or intent. He also did not have auditory/visual hallucinations or paranoia. The Veteran’s insight and judgment was found to be fair and he was alert and oriented in all spheres. In April 2020, the Veteran reported having more issues with sleep and increased anxiety due to the pandemic. After reviewing the foregoing evidence, the Board finds that at no point during the initial rating period did the severity of the Veteran’s PTSD with alcohol use most closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In general, the evidence showed that the Veteran’s routine behavior, self-care, and conversation were normal. Moreover, there is no evidence that the Veteran’s PTSD impaired his performance of routine activities or his ability to function independently. The Veteran also did not exhibit spatial disorientation or obsessive rituals that interfered with routine activities. He denied suicidal and homicidal ideation. His occasional depression, anxiety, suspiciousness, mild memory loss, flashbacks, sleep disturbances, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are all contemplated by the 50 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that during the January 2014 VA examination, the Veteran was noted to have difficulty adapting to stressful circumstances and impaired impulse control. These are symptoms associated with a 70 percent rating under the General Rating Formula. However, it is not shown that these symptoms have resulted in occupational and social impairment with deficiencies in most areas. The Veteran has been working throughout the entire appeal period and although the Veteran is divorced, he had a girlfriend for a portion of the appeal period. He also maintains relationships with his family, which does not suggest an inability to establish and maintain effective relationships, and reports going to a gym regularly. Overall, the evidence of record does not show symptoms equivalent in severity to those associated with a 70 percent rating for the period at issue, nor does it show deficiencies in most areas because of such symptoms. Both factors must be present in order to satisfy or more nearly approximate the criteria for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Staged ratings have been considered, but because the Veteran’s disability was fairly consistent throughout the period on appeal, a staged rating is not warranted. Notably, he has not alleged, and the record does not indicate, any worsening in his PTSD symptoms since the January 2014 VA examination. For the foregoing reasons, the Board finds that the Veteran’s service-connected PTSD does not warrant a disability rating in excess of 50 percent. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Stuedemann, Angela L. 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.