Citation Nr: 21029205 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-22 419 DATE: May 12, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT During the entire period on appeal, the Veteran's posttraumatic stress disorder (PTSD) with alcohol use disorder has been manifested by occupational and social impairment with deficiencies in most areas, due to symptoms such as depression, anxiety, suspiciousness, chronic sleep impairment, nightmares, panic attacks, memory loss, difficulty maintaining attention and concentration, avoidance of crowds and difficulty maintaining and establishing effective relationships, but not by total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent for PTSD with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130 Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1967 to December 1968 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing in August 2019. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in November 2019 and was remanded for additional development. As the directives in the November 2019 remand having been substantially compiled with, the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal in an August 2020 rating decision entitlement to a TDIU was granted effective January 10, 2013. As such represents a full grant of benefits sought on appeal this issue is no longer before the Board. Additionally, the Veteran was granted a 70 percent rating for PTSD effective July 1, 2015, which represents a restoration of benefits sought on appeal. As such the restoration of a 70 percent rating is no longer before the Board. Below, the Board will discuss whether an increased rating in excess of 70 percent is warranted for PTSD. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, as warranted. Entitlement to an increased rating in excess of 70 percent for PTSD The Veteran contends that an increased rating is warranted for his service-connected PTSD with alcohol use disorder. The Veteran's PTSD is currently rated as 70 percent disabling under Diagnostic Code 9411. During the course of the appeal, the prior 70 percent rating was restored in an August 2020 rating decision effective July 1, 2015. The Board will consider whether an increased rating in excess of 70 percent is warranted for PTSD. Additionally, the Board notes that in an August 2020 rating decision entitlement to individual unemployability was granted effective January 10, 2013. The Board will broadly refer to the Veteran's PTSD to encompass the entirety of his mental health symptomology including his PTSD and alcohol use disorder. The Veteran's PTSD is rated using the general formula for mental disorders (general formula). Under that formula, a 70 percent rating is assigned for 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 which 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; 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 closes relatives, own occupation, or own name. Importantly in this case, effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The file contains VA mental health examinations performed prior to August 2014 when the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders was the medical and regulatory standard and was appropriate for use by the examiners at those times. As there is no information to the contrary, the Board will presume that earlier VA examiners appropriately utilized the diagnostic standard in effect at the time of their examinations. Further, 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. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) the Federal Circuit stated that "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." It was further noted that "§ 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." Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran contends that his PTSD has been characterized by symptoms including depression, anxiety, difficulty sleeping, nightmares, panic attacks, memory loss, difficulty maintaining attention and difficulty concentrating, avoidance of crowds and difficulty maintaining and establishing effective relationships. The Board finds that based on the evidence of record the preponderance of the evidence is against findings that a rating in excess of 70 percent for the Veteran's PTSD is warranted for the period on appeal. The Veteran contends a worsening of symptoms during the appeal period warranting an increased rating. The evidence of record shows that the Veteran has had occupational and social impairment with deficiencies in most areas including work, family relationships, judgment, thinking and/or mood with symptoms including depressed mood, anxiety, panic attacks, difficulty sleeping, nightmares, memory loss, difficulty maintaining attention and concentration, suspiciousness, avoidance of crowds and difficulty maintaining and establishing effective relationships. Based on the evidence of record the Board finds that the preponderance of the evidence is against finding that an increased rating in excess of 70 percent is warranted during the appeal. The Veteran was afforded a VA examination in May 2013. The Veteran reported increased depression. The examiner noted PTSD and alcohol dependence. The VA examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran denied passive or active suicidal ideation. Symptoms noted included depressed mood and anxiety, nightmares and difficulty sleeping. The Veteran reported flashbacks and nightmares relating to his service in Vietnam. A mental status examiner noted that the Veteran presented with a casual appearance with fair grooming and fair hygiene and was fully oriented. The Veteran reported difficulty understanding the examiner at times and reporting that his hearing aid was broken. Affect was constricted and inappropriate in the context of the conversation. His memory was intact. Veteran denied suicidal ideations, intent, plan or a history of such. Additionally, the Veteran denied auditory and/or visual hallucinations or psychotic processes. The Veteran reported residing with his wife and son. He reported enjoying cooking and doing yardwork with his wife. The Veteran reported he enjoys spending time outside in his yard, watching animals, mediating and enjoying spending time by his pond. The Veteran reported that he avoids big crowds and tends to have panic attacks in big crowds and does not like going to the grocery store. The examiner noted that the Veteran is capable of managing his financial affairs. The Veteran testified at a Board hearing in August 2019. His testimony is consistent with his reports to an examiner during a VA examination in December 2019. The Veteran reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relations and difficulty in adapting to stressful circumstances including work or a work like setting. The examiner noted PTSD and alcohol use disorder. The examiner noted that it is not possible to differentiate what symptoms of the disorder and their resulting impairment overlap and the individual impact of each disorder cannot be determined. Occupational and social impairment was noted with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran reports that he avoids crowds and unfamiliar people. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic and depression, chronic sleep impairment, nightmares, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances and an inability to establish and maintain effective relationships. The Veteran reported that he continues to reside with his wife and adult son. The Veteran reports keeping in touch with his adult sons in New York and Nevada. He also reports regularly socializing at the American Legion in the afternoons. The Veteran denied suicidal thoughts. The Veteran arrived early for his employment and was dressed for the weather with good self-care. The Veteran maintained good eye contact, was cooperative with a slightly anxious affect. The Veteran reported that he enjoys spending time outside in his yard watching nature. The examiner noted that the Veteran has chronic and long term PTSD symptoms which have been outlined and his symptomatic expression is likely to vary. The Veteran frequently displays avoidant behaviors, and this significantly impacts his social and occupational functioning. VA treatment records have been associated with the claims file and note the Veteran is consistently oriented to person, place and time on mental status exams. Treatment records note the Veteran regularly attends VA appointments and treatment sessions and is on time and appropriately dressed and displays adequate hygiene. VA psychology notes that the Veteran was consistently on time for individual therapy session, neat and clean in appearance and fully oriented in mental status examinations. In addition, VA treatment records note the Veteran continues to report ongoing depression, anxiety, irritability, low frustration tolerance, sleep problems and avoidance of activities at times. Treatment records note the Veteran regularly interacts with his wife, his children, some extended family and friends. He reports regularly going to the Legion hall and interacting with fellow Veterans. The Veteran reports regularly attending military funerals as a volunteer of the honor guard. The Veteran reported he spends time doing yard work, planting and tending to his pond in his backyard and completing yard and garden projects in warmer weather. The Veteran reported that he continued to maintain the home him and his wife own. The Veteran consistently denied suicidal and homicidal ideations and auditory and visual hallucinations and delusions. The Veteran's representative in March 2021 correspondence contends that an increased rating is warranted for the Veteran's service-connected PTSD. The representative contends that the Veteran's statements warrant an increased rating in excess of 70 percent because the rating does not contemplate the severity of the symptoms as reported by the Veteran and the effect of the symptoms on his capacity for employment. However, the representative did not discuss specific symptoms and their effects. The Board has considered the Veteran's and his representative's general contentions; however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. Based on the lay and medical evidence of record the Board finds that the Veteran's PTSD does not more nearly approximate the level of severity contemplated by an increased 100 percent rating during the appeal period. During the period on appeal, the Veteran reported symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, nightmares, panic attacks, memory loss, difficulty maintaining attention, difficulty concentrating, avoidance of crowds and difficulty maintaining and establishing effective relationships. The Board notes the Veteran's contentions regarding his ongoing symptoms and a worsening of his mental health symptomology. However, such lay evidence even when accepted as accurate does not establish a level of disability contemplated by a higher evaluation. The overall nature, frequency and severity of the Veteran's symptoms have not risen to the level of an increased 100 percent evaluation. The evidence of record supports that the Veteran's PTSD was characterized by a 70 percent rating during the appeal. The Board finds an increased 100 percent rating is not warranted. During the appeal the Veteran experienced occupational and social impairment with deficiencies in most areas due to symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment and nightmares, panic attacks, memory loss, difficulty maintaining attention and difficulty concentrating, avoidance of crowds and difficulty maintaining and establishing effective relationships. The Veteran's current symptoms are contemplated by the current 70 percent rating. The Board recognizes that some of the Veteran's reported symptomology approximate the listed criteria for an evaluation in excess of 70 percent. The Board also notes that some of the Veteran's symptoms have slightly worsened during the period on appeal. Taking a holistic analysis of the signs and symptoms of the Veteran's service-connected PTSD his overall occupational and social impairment caused by these symptoms has not risen to the level of an increased 100 percent rating. The Veteran's PTSD has not been characterized by total occupational and social impairment. Significantly, during this appeal the Veteran reported that he maintained a close relationship with his wife, children and several extended family members. The Veteran reported regularly spending time at the Legion post interacting with friends and other Veterans. Additionally, the Veteran volunteered as part of military funerals with the color guard. The Veteran contends that his ongoing mental health symptomology has negatively impacted his social relationships, which the Board concedes and is contemplated by his current 70 percent rating. The Veteran consistently reported completing activities of daily living, with assistance at times, regularly attending his VA appointments, completing projects around the house and yard. VA examinations and treatment records note the Veteran was consistently appropriately dressed and displayed adequate hygiene at appointments and was oriented to time, person and place. Further, the evidence of record does not show gross impairment in thought or communication processes, grossly inappropriate behavior and disorientation to time or place or memory loss for names of close relatives or is own occupation or name. The Veteran reported that he remains active completing projects and enjoys spending time outside in his yard. The evidence of record shows the Veteran's service-connected PTSD has not resulted in total social impairment Thus, based on the evidence of record the Veteran's overall disability picture was not one of total social impairment. As to occupational impairment the Veteran reports last working in 2003. The Board notes that the Veteran experienced severe occupational impairment during the appeal period. He has been assigned a TDIU for the entire period. The Board also notes that the Veteran was consistently able to manage his financial affairs during the appeal. However, the Veteran's overall disability picture is not one of both total occupational and social impairment. Taking a holistic analysis of the signs and symptoms of the Veteran's service connected PTSD his overall occupational and social impairment caused by these symptoms has not risen to the level of an increased 100 percent rating. As such an increased 100 percent rating is not warranted during the period on appeal. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 70 percent for the Veteran's service-connected PTSD with and alcohol use disorder is warranted, during this period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.