Citation Nr: 21030182 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 05-18 685 DATE: May 18, 2021 ORDER Entitlement to an initial disability rating of 70 percent prior to October 19, 2020 for post-traumatic stress disorder (PTSD) is granted. Entitlement to a disability rating in excess of 70 percent from October 19, 2020 for PTSD is denied. FINDINGS OF FACT 1. For the period prior to October 19, 2020, the probative evidence of record is in favor of finding that the Veteran's PTSD symptoms manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the period from October 19, 2020, the probative evidence of record is against a finding that the Veteran's PTSD symptoms manifest in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent prior to October 19, 2020 for PTSD have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a disability rating in excess of 70 percent from October 19, 2020 for PTSD have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1999 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD, assigning a 30 percent disability rating effective July 10, 2003. In February 2010, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the record. A March 2011 Board decision, in part, increased the Veteran's initial disability rating for his service-connected PTSD to a 50 percent evaluation, but denied a rating in excess of 50 percent. In September 2011, the United States Court of Appeals for Veterans Claims (Court) order implemented a September 2011 Joint Motion for Partial Remand, vacating and remanding that portion of the March 2011 Board decision that denied an initial rating in excess of 50 percent. A November 2012 Board decision once again denied an initial rating in excess of 50 percent. An April 2013 Court order implemented a March 2013 Joint Motion for Remand (JMR), vacating and remanding the November 2012 Board decision. In February 2014, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development in compliance with the March 2013 JMR. In November 2014, the Board once again denied an initial rating in excess of 50 percent. Thereafter, the Veteran again appealed the decision to the Court, and pursuant to a March 2016 JMR, the Court vacated and remanded the Board's November 2014 decision. In May 2016 and July 2017, the Board remanded the appeal to the AOJ for additional development in compliance with the March 2016 JMR. In May 2018, the Board requested a Veterans Health Administration (VHA) opinion and the VHA opinion was obtained in June 2018. In June 2019, the Board remanded the appeal to the AOJ for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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 contends that his PTSD symptoms were of the severity to merit a rating in excess of 50 percent for the period prior to September 8, 2015, and in excess of 70 percent thereafter. The Veteran's service-connected PTSD is under VA's General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the formula, a 50 percent evaluation is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted 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; intermittently illogical, obscure, or irrelevant speech; 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 evaluation is assignable where 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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." Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Id. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD for the period on appeal prior to October 19, 2020 VA treatment records dated prior to June 2009 show that the Veteran was seen in December 2004 with complaints of not being able to sleep for more than four hours at a time. He indicated that he could not watch the news and that he got crying spells. He had nightmares about Iraq. He was irritable and could not control his temper. He sometimes found himself shaking for no reason and sometimes heard things and/or saw things while awake. He got depressed often and was anti-social. The Veteran admitted to occasional thoughts of suicide and homicide but denied any plans or intentions at the time. The Veteran was diagnosed with PTSD. On follow-up psychiatric treatment, it was noted that the Veteran continued to have nightmares and more irritability despite taking medication. He reported feeling hopeless, helpless, and frightened that he might get killed any day. In November 2006, it was noted that the Veteran had begun experiencing panic attacks. He continued to experience nightmares, flashbacks, and intrusive thoughts with hypervigilance. The Veteran had an examination for his PTSD in February 2007. The Veteran reported sometimes experiencing flashbacks, which he interpreted as hearing voices of people who have been bombed or hearing bombs go off. The Veteran further reported having insomnia, hypervigilance, exaggerated startle response, decreased concentration, and anger outbursts. These symptoms occurred on a daily basis and were related to the problems he experienced in Iraq. He slept approximately four hours a night and would wake up at any noise in the house. He was hypervigilant in that he would lock all the doors and wake up sometimes and tour his premises to make sure things were safe for his family. The Veteran complained of avoidance and emotional numbing. The relationship with his wife was particularly affected by his symptoms of PTSD. His occupation and social functioning were also affected in that he had resorted t selecting a job with people he had some familiarity with in to avoid situations that might cause his symptoms to occur in social gatherings. His impairment was deemed to be moderate. The Veteran had another examination for his PTSD in June 2009. The Veteran was found to have sleep impairment characterized by difficulty sleeping every night and combat-related nightmares roughly three times a week. He had inappropriate behavior in so far as he endorsed social aversion and irritability. Auditory hallucinations were present but not persistent. His obsessive/ritualistic behavior involved checking and rechecking the doors of his home before going to bed each night. The Veteran endorsed transient suicidal ideation without plans. He endorsed violence in the form of throwing objects but denied assaults directed towards others. He enjoyed few or no close friendships beyond family. The Veteran was diagnosed with chronic PTSD and alcohol abuse. It was noted that the Veteran's reports were reasonably compelling and that he seemed to be self-medicating with alcohol. The examiner opined that the PTSD caused the alcohol abuse and therefore must be considered an additional (additive) challenge. There was reduced reliability and productivity due to PTSD symptoms. At the February 2010 Board hearing, the Veteran testified that he had a very short temper and found himself having to take frequent breaks at work, approximately five or six times a day, to get away from his co-workers. He described having a stressful, argumentative relationship with his wife. As for going out, he testified that he did not do any shopping other than for groceries. He had become very secluded and did not want to be around other people. The Veteran reported having thoughts of harming himself and/or others. He described having suicidal thoughts around two or three times a week and having made actual plans but no attempts. The Veteran testified that he was starting to sleep a little more than he used to, about six hours a night. The Veteran had another examination for his PTSD with alcohol abuse in March 2014. The Veteran exhibited symptoms including anxiety, depressed mood, and sleep impairment. The examiner noted that the Veteran had received no treatment for PTSD since the last examination in 2009. The Veteran was still employed at Mobis Alabama in purchasing and had been employed for six and a half years. The Veteran was divorced from his wife of 10 years and he was sharing custody of his children. It was noted that his divorce did not have to do with his PTSD but with separate marital issues. His social skills were intact, and he had good family relationships outside of his marriage problems and enjoyed spending time with his kids. His general presentation was consistent with his symptom endorsement and records review. On mental status examination, he was oriented times four. Recent and remote memory were grossly intact. Attention and concentration were intact. Receptive and expressive language were without impairment and consistent with reported education and employment history. No psychotic signs or symptoms, no auditory or visual hallucinations or delusional thought was present. Mood was reported as depressed, affect was congruent and consistent with narrative content. He has intact social skills. He denied current or recent suicidal or homicidal ideation, plan, or intent as well as history of suicide attempt. The Veteran also reported avoidance of distressing memories of his trauma, persistent and exaggerated negative beliefs, and feelings of detachment from others. Irritability and angry outbursts were noted. He was deemed to have no difference in functional impairment since the last examination in 2009. The examiner opined that PTSD with alcohol abuse was manifested by unprovoked irritability with periods of violence, anxiety, chronic sleep impairment, depressed mood, 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. The examiner added in August 2014 that alcohol abuse does not impact his PTSD symptomatology. Alcohol abuse was reported to be an attempt, although a maladaptive one, to help with controlling some of the PTSD symptoms. But according to the examiner, alcohol abuse did not cause nor result in PTSD symptomatology. In August 2014, an additional psychologist reviewed the claim and commented on a February 2014 alcohol screening. The examiner stated that the February 2014 alcohol screening indicated that the Veteran does not drink alcohol. The examiner noted that the March 2014 examination noted that the Veteran's alcohol consumption did not have any impact on his PTSD symptoms. The examiner opined that given the information provided in the Veteran's medical records it appears that there is no current impact on the Veteran's service-connected disability of PTSD due to alcohol abuse. In May 2016, a VA medical opinion was obtained. The examiner noted that the diagnosis of alcohol abuse disorder was separate and independent from his diagnosed PTSD, and that the symptoms of alcohol abuse disorder and PTSD did not overlap. An additional medical opinion was obtained in February 2017. Initially, the examiner noted that, unless otherwise specified, the Global Assessment of Functioning (GAF) scores assigned during the appeal period encompassed the symptomatology associated with both PTSD and alcohol abuse disorder, and that the scores were indicative of only moderate symptomatology. The examiner then addressed the Veteran's post-service employment and education history and concluded that his ability to work full time and attend classes for information technology indicated that he experienced, at a maximum, only a moderate level of impairment. The Veteran had a mental health examination in August 2017. The Veteran was diagnosed with PTSD and alcohol use disorder. The Veteran exhibited symptoms including anxiety; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner stated that the Veteran's psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he has been married twice and that he has been married to his current wife for three years. The Veteran indicated that he has a son and a daughter. He also indicated that he enjoys few friendships. The Veteran reported consuming three to four drinks of alcohol every day. He denied any family history of alcohol abuse or dependence. The Veteran was casually but neatly dressed. He was oriented to the year, the month, the exact date, and the day of the week. His affect was constricted, and his mood was mildly dysphoric. His speech fell within normal limits with regard to articulation, rate, fluency, and content. He evidenced no circumstantial thinking, tangential thinking, flights of ideas, mania, or thought symptoms. He denied suicidal ideation or homicidal ideation. His short-term memory appeared to be intact as evidenced by his ability to recall events from several days prior to the interview. His long-term memory appeared to be intact as evidenced by his recitation of history. In an August 2017 medical opinion, the examiner stated that he reviewed original reports and several attempts to provide retrospective analyses. The examiner stated that the review revealed repeated, inconsistent evaluations and reports regarding the degree of impact imposed by alcohol on the veteran's PTSD symptoms and general psychiatric status. The examiner concluded that he was unable to provide an informative medical opinion without resorting to mere speculation. In an August 2017 statement, the Veteran's wife stated that the Veteran has experienced medical emergencies, night terrors, paranoia, panic attacks, and anxiety. She further stated that Veteran has frequent mood swings. In an additional statement from the Veteran's wife in August 2017, she stated that the Veteran experiences depression. She further stated that the Veteran frequently chooses to isolate himself from friends and family, and that he often cries without explanation. The Veteran's wife also stated that the Veteran experiences sleep deprivation, feelings of worthlessness and low self-esteem, and constant worrying and suspiciousness. She stated that when the Veteran leaves home to go to work, she needs to look at his attire to be sure that he is presenting himself professionally. She stated that the Veteran frequently leaves home in clothes with holes, shoes falling apart, and his hair uncombed. A Veterans Health Administration (VHA) medical opinion was obtained in June 2018. The examiner provided a retrospective medical opinion regarding the impact the Veteran's service-connected PTSD and alcohol abuse disorder had on his occupational and social functioning from July 10, 2003 to 2014, and whether there had been any changes in severity of the Veteran's service-connected PTSD and alcohol disorder since July 10, 2003. The examiner noted that the Veteran deviated twice from his usual denials to queries on alcohol use. The first was in June 2009, when he discussed drinking daily to self-medicate his PTSD symptoms, and in December 2009 when he noted his alcohol use "began" in the last 7 years. The examiner stated that the inconsistencies in his reports are unable to be resolved, but it is notable that his physical care and mental health treating clinicians did not add Alcohol Abuse Disorder to his Problem List, or recommend further assessments or treatment for alcohol. The examiner noted that patients with PTSD may utilize alcohol, drugs, tobacco, caffeine, food, video games, web surfing, shopping, or thrill-seeking to temporarily lessen distressing symptoms, without the maladaptive coping behaviors separately meeting DSM criteria for a mental disorder. The examiner noted that the Veteran did not meet either the DSM-IV or DSM 5 criteria for a separate diagnosis of alcohol use disorder during the period. Additionally, the examiner noted that the Veteran's lab work during the period under review was not consistent with heavy alcohol abuse. The examiner concluded that during the period from July 2003 to 2014, the Veteran did not meet criteria for Alcohol Abuse Disorder as defined by DSM-IV or Alcohol Use Disorder as defined by DSM 5. The Veteran repeatedly denied significant alcohol use the vast majority of times he was asked, and he had no objective lab values indicating chronic heavy alcohol use. The examiner also noted that there is no evidence that his reported alcohol use to self-medicate PTSD symptoms significantly worsened his occupational and social functioning at that time. Additionally, the examiner stated that she had little new to add to assessments by previous examiners, other than clarify as above that the documented occupational and social impairment was due to service-connected PTSD, and not from Alcohol Use Disorder. The examiner noted that while there is some inter-rater variability with the assigned GAF scores, previous examiners describe overall moderate symptoms between 2004 - 2009. The examiner also noted that the Veteran had no contact with Mental Health providers or C&P examiners between 2010 and 2013, and by March 2014, his symptoms had improved. The Veteran had another mental health examination in July 2018. The examiner noted that the Veteran had diagnoses of PTSD, alcohol use disorder, and unspecified depressive disorder. The Veteran exhibited symptoms including depressed mood, anxiety, and disturbances of motivation and mood. The examiner stated that the Veteran's diagnosis of depression was based solely on his self-report and is not related to his service-connected diagnosis of PTSD, and his alcohol use disorder, which is also not related to the diagnosis of PTSD, results in mood swings, anxiety, and sleep disturbance all of which are also symptoms of PTSD and it is not possible to differentiate between the two. The Veteran stated that he spends his free time at home drinking. The Veteran stated that he has at least five drinks a day. The examiner indicated that the Veteran's alcohol use is "obviously a significant problem". The Veteran reported that he has been married to his second wife for four years and described having a tenuous relationship with her. He also stated that he has shared custody of his 12-year-old son and 10-year-old daughter. The Veteran also stated that he spends most of his time at home where he drinks alcohol and listens to his wife. The Veteran was dressed in casual clothing, was oriented times four, maintained good eye contact, and was in no acute distress. The examiner stated that given that information presented by the Veteran was in conflict with information in the medical records, along with his ongoing use of alcohol, and now presented symptoms of depression it is very difficult to determine his actual level of functional impairment based solely on his service-connected diagnosis of PTSD. The examiner stated that he based his overall level of functioning based on all three diagnosis, two of which are not related to his service-connected diagnosis. In an April 2020 statement, the Veteran stated that he feels that his symptoms have gotten worse as a result of the COVID-19 pandemic. The Veteran reported increased anxiety and feelings of hopelessness. The Board concludes that, after affording the Veteran the benefit of the doubt, the evidence of record regarding the Veteran's symptomatology show disability that more nearly approximates the higher, 70 percent disability rating for the period prior to October 19, 2020. See 38 C.F.R. § 4.7. The Veteran's symptoms include reports of intermittent feelings of hopelessness; suicidal ideation; auditory hallucinations; difficulty in adapting to stressful circumstances (including work or a work-like setting); and difficulty in establishing and maintaining effective work and social relationships. Additionally, the Veteran has reported symptoms including intermittent neglect of personal appearance and hygiene. As a result, the Board finds that the Veteran's described symptoms more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as described by the 70 percent rating criteria. However, a rating greater than 70 percent is not appropriate because the evidence of record does not indicate that the Veteran had total occupational and social impairment as contemplated by the 100 percent rating criteria. While the Veteran's PTSD causes severe impairment, the evidence of record is against a finding that his PTSD caused total impairment. Although the Veteran has described a tenuous relationship with his current wife, a relationship with his wife does exist. Furthermore, although the Veteran has a tendency to self-isolate, he has reported having some friendships as well as connections to his children. Furthermore, there is also no evidence in the record showing that his service-connected psychiatric disorder has manifested in those symptoms typically associated with total social and occupational impairment, such as gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The record also does not support that he has other symptoms on par with the level of severity contemplated by those symptoms. The medical evidence of record consistently notes that the Veteran has been oriented to person, time, and place. Although the Veteran at times has feelings of hopelessness, suicidal ideation, and difficulty in adapting to stressful circumstances, the weight of the evidence shows that his PTSD has not placed hin in persistent danger of hurting himself or others. In short, the Veteran's PTSD has not caused total occupational and social impairment, warranting an increased rating to 100 percent for the period prior to October 19, 2020. In short, the Veteran's PTSD symptoms cause occupational and social impairment in most areas, as contemplated by the 70 percent rating. Therefore, the benefit sought on appeal is granted to 70 percent disabling, but no higher for the period prior to October 19, 2020. 2. Entitlement to a disability rating in excess of 70 percent for PTSD for the period on appeal from October 19, 2020 The Veteran had a mental health examination in October 2020. The Veteran had diagnoses of PTSD and alcohol use disorder. The Veteran exhibited symptoms including depressed mood; anxiety; mild memory loss; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. The Veteran reported that he was still married to his spouse and living with his son and daughter. The Veteran reported being in a loving and supportive environment, although the Veteran noted occasional detachment and that it is hard for him to feel close to anyone. He indicated that he has no friends and does not want to make any new friends because he feels like he will be judged. The Veteran reported having issues at work including difficulty concentrating. The Veteran was appropriately dressed, and his grooming and hygiene were good. His motor activity was unremarkable. He was cooperative and engaged. He was oriented times four. His speech was rambling, derailed, and required redirecting. His thought content was tangential. His mood was anxious with appropriate affect. He denied current suicidal and homicidal ideation but noted recent passive suicidal ideation without the intention or plan to self-harm. There was no indication of manic, panic, or psychotic symptoms. His judgment and insight were good. In a December 2020 clarification medical opinion, the examiner indicated that the Veteran has no diagnosis of alcohol abuse related to his diagnosis of PTSD, and military service. In a February 2021 clarification medical opinion, the examiner indicated that the Veteran's primary diagnosis remains PTSD and is unchanged. The examiner noted that the Veteran was also diagnosed with Alcohol Use Disorder, moderate during the October 2020 examination, and the examiner stated the Alcohol Use Disorder is secondary to PTSD. The examiner opined that it is at least as likely as not that the Veteran's alcohol use disorder is proximately due to or the result of the Veteran's underlying service-connected PTSD. The examiner stated that the Veteran has a diagnosis of Alcohol Use Disorder that meets DSM-5 criteria. The examiner also noted that the Veteran reports currently using alcohol as a means of coping with his PTSD symptoms as described in the report, which is consistent with his report and the examiner's opinion dating back to June 2009. The examiner also noted that it was noted in August 2014 that the Veteran uses alcohol as a maladaptive attempt at managing his PTSD symptoms. As noted above, to warrant the assignment of a higher 100 percent rating, the Veteran's PTSD must manifest in symptoms causing total occupational and social impairment. While the Veteran's PTSD does cause severe impairment, the evidence of record is against a finding that his PTSD causes total impairment for the period from October 19, 2020. Although the Veteran has a tendency to self-isolate and has reported that he has no friends, he has described a loving and supporting home environment with his wife and children. Furthermore, the record does not demonstrate that his service-connected psychiatric disorder has manifested in those symptoms typically associated with total social and occupational impairment, such as gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The record also does not support that he has other symptoms on par with the level of severity contemplated by those symptoms. The medical evidence of record consistently notes that the Veteran has been oriented to person, time, and place. Although the Veteran has intermittent feelings of hopelessness, suicidal ideation, and difficulty in adapting to stressful circumstances, the weight of the evidence shows that his PTSD does not cause total social impairment and social impairment, warranting an increased rating to 100 percent. Accordingly, for the period from October 19, 2020, the Veteran's PTSD symptoms are more closely aligned with occupational and social impairment in most areas, as contemplated by the 70 percent rating. For these reasons, the benefit sought on appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate 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.