Citation Nr: 21032047 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-24 892 DATE: May 25, 2021 ORDER Prior to January 25, 2020, an increased disability rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder is denied. Beginning January 25, 2020, a 100 percent disability rating for the service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder is granted. FINDINGS OF FACT 1. Prior to January 25, 2020, the Veteran's service-connected PTSD with alcohol use disorder has been manifested by no more than occupational and social impairment with reduced reliability and productivity. 2. Beginning January 25, 2020, the Veteran's service-connected PTSD with alcohol use disorder has more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 25, 2020, the criteria for an increased disability rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (Code) 9411. 2. Since January 25, 2020, the criteria for a 100 percent disability rating for the service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously remanded by the Board in July 2019. 1. Entitlement to an increased disability rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder prior to January 25, 2020 is denied. Disability evaluations are determined by the application of 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 practicably be 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 two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. PTSD is evaluated under 38 C.F.R. § 4.130, Code 9411. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from PTSD under 38 C.F.R. § 4.130 is not restricted to the symptoms in Code 9411. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013)). Under Code 9411, a 50 percent rating is warranted for 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. A 70 percent rating is warranted for 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 worklike setting); and inability to establish and maintain effective relationships. A (maximum) 100 percent rating is warranted for: 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 and others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9411. The Veteran was originally awarded service connection for PTSD in a May 2013 rating decision and a 50 percent disability rating was assigned, effective from December 22, 2011. Thereafter, on September 17, 2013, the Veteran filed his claim for increase. As the instant claim for increase was filed in September 2013, the relevant period for evaluation here is from September 2012 (one year prior to the receipt of the claim) to the present. The evidence pertaining to the severity of the Veteran's PTSD prior to January 25, 2020 consists essentially of VA treatment records and a January 2013 VA examination report. On review of such evidence, the Board finds that prior to January 25, 2020, the Veteran's PTSD symptoms are not shown to have been of, or more nearly approximating, such extent, severity, depth, and persistence as to have been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, the degree of disablement required for a schedular 70 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The pertinent clinical evidence, mostly from the January 2013 VA examination shows that the Veteran reported being married once but currently separated with a divorce pending. He stated that he currently resides with his girlfriend (whom he has dated for two years) who was pregnant and expecting with their first child in May. He stated that he and his girlfriend were doing pretty good and that he thought the main issue was that he just did not feel any sex drive because of the medication he is on. He stated that his relationship was all right with his parents; although he did not talk to his mother and younger sister much but did talk to his older sister. He further stated that he quit talking to his old friends from before the military but had one friend from the service who he still kept in contact with. The Veteran reported that he spent his leisure time playing with his dogs and cooking. He stated that he worked as a delivery driver for eight or nine months and also worked doing framing at that time. He stated he also worked doing tile and that he ended up quitting the delivery driver job because he was going in and getting into fights with a guy who also worked there. He stated he left tiling because he did not have good tools and he saw there was no promotion potential. He stated he has been out of work for two weeks. He reported he did that last job for five months when he was working, and he was pretty good at keeping the PTSD stuff out of work, but he would still be jumpy from the guys coming up behind him at work. The Veteran reported being repeatedly arrested for driving with a suspended license for unresolved speeding tickets in 2012 and reportedly held in jail for approximately 10 days. The examiner reported the Veteran with the following PTSD symptoms: depressed mood; anxiety; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The examiner summarized the Veteran's symptoms as 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. The examiner diagnosed PTSD. Moreover, VA treatment records for the period show that the Veteran took medication for anxiety/depression and engaged in some psychiatric treatment therapy/counseling sessions intermittently. Per a November 2012 VA psychiatric treatment note, the Veteran reported poor concentration, loss of interest, repetitive thoughts, angry outbursts, memory problems and avoidance of responsibilities. He also reported hearing voices that others could not hear and seeing people, images, animals, objects, shapes, or colors that others could not see. He explained that he sees his friend that got killed. He stated that he will be walking and think the friend just walked by him. Mental status examination was otherwise normal at that time. Per a February 2013 treatment note, the Veteran reported doing better in all areas except his libido problem. Per a November 2014 VA treatment note, the Veteran reported that he relocated from and was living with his father. He reported that he primarily needed medication management with behavioral health. In December 2014, the Veteran reported splitting up with his girlfriend after he stopped doing drugs and that he was getting along better with the mother of his child, but she would not allow him to visit. The Veteran admitted using cocaine in November 2014. He also reported wanting to attend Alfred University and study for his master's in clinical psychology after he gets his bachelor's. The clinician noted the Veteran with no significant depression at this time. A December 2014 treatment note shows the Veteran reporting that he starts at Alfred University in January 2015. In December 2015, he reported that he stopped taking his medication which led him to start doing poorly in school. He stated that his medication was causing sexual side effects and that he had been out of school for two months but wanted to return. He stated he was back on his medication for two and a half months and thought he felt better. He had no paranoid or depressed thoughts, slept well and mood was stable/good. In February 2016, the Veteran reported his academic progress was progressing and he thought he was going to finish school. He noted he was thinking of attending graduate school someday. He reported being under a lot of stress/anxiety from his son's mother in Texas and wanted "something for anxiety." Per a March 2016 VA treatment record, the Veteran was noted to have informed his provider in the past that he had been accompanied by a dog that provided him with support, allowing him to deal with stress better and the provider opined that it was medically acceptable that the Veteran should be allowed to keep a dog for his mental wellbeing on his travels. Per a March 2016 VA behavioral outpatient progress note, to assess PTSD symptoms, mental status examination was normal. The clinician determined that while the Veteran reported an increase in thoughts of two soldiers who committed suicide in his unit a couple of months ago, his associated symptoms did not meet the full criteria for a PTSD diagnosis. He identified unwanted memories but was easily able to distract or put these out of his mind and had very infrequent triggering events. Based on the Veteran's self-report and explanation of symptoms, the team determined that his current symptoms were best categorized as an adjustment disorder with mixed anxiety and depressed mood and concurred on diagnoses of alcohol abuse with a rule out of alcohol dependence. The Veteran continued to consume alcohol daily above recommended limits despite having legal consequences from a DUI and loss of his driver's license. He states he did not see his substance use as an issue, did not want to receive treatment for alcohol abuse and rather focused on not smoking crack cocaine. The Veteran acknowledged his level of irritability as problematic at times. The disability picture reflected by the evidence of record for the period in question, appears more closely aligned with the criteria for a 50 percent rating (occupational and social impairment with reduced reliability and productivity), than those for a 70 percent rating (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood). Such impairment warrants no more than a 50 percent rating under Code 9411. While the Veteran had deficiencies in some areas under the criteria for a 70 percent rating such as; impaired impulse control (such as unprovoked irritability with periods of violence), such is not shown to have resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that his presentations on examination, and general adherence to his treatment regimen suggest reliability, although reduced. In this regard, while the Veteran did have periods where he stopped taking his medication, he was able to acknowledge that his lack of adherence was causing him to perform poorly in school and then requested to be placed back on his medication. Moreover, the 2013 VA examiner's description of the Veteran's impairment from his PTSD symptoms (depressed mood; anxiety; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships) suggests moderate impairment, as opposed to a moderately severe impairment range. The symptoms found are not shown to have affected his ability to function independently and effectively. Although the evidence clearly demonstrates that the Veteran has occupational and social impairment with reduced reliability and productivity attributable to PTSD, the psychiatric disability picture during the period is not one more nearly approximating deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood and thus, is more consistent with the criteria for a 50 percent schedular rating under the General Rating Formula for Mental Disorders. Accordingly, the Board finds that prior to January 25, 2020 a rating in excess of 50 percent for the Veteran's service-connected PTSD is not warranted. 2. Entitlement to an increased disability rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder since January 25, 2020 is granted. From January 25, 2020, the relevant evidence for consideration consists of VA treatment records and the report of the VA examination report on the date. On review of that report, the Board finds that the Veteran's PTSD symptoms are shown to be so severe as to result in, or approximate a level of, total occupational and social impairment, the degree of impairment required for the next higher, 100 percent, rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the evidence demonstrates that the Veteran's PTSD manifestations are more closely approximated with total occupational and social impairment. The January 25, 2020 VA PTSD examination report notes that the Veteran married his girlfriend in 2017 and had been together, except about a year and a half separation, since 2011. He reported that they remain married but have their issues and noted that "it's mostly me." He stated he yells at his wife, at everything, and acknowledged breaking a laptop monitor that morning and having smashed a remote against a wall. He reported being generally very angry but denied taking his rage out on people or animals, but "has smacked the dog from time to time." He reported disciplining his son by sending him to his room and will smack his bottom if he "continues to act up." The Veteran reported that he has lost interest in sex and his ability is also impaired. He and his wife have no activities that they enjoy together. He stated he does not really do much, "I do my work and come home." He stated at home he watches cartoons which his son but other than that, he isolates. He reported that he used to go to the basement but now there is a hockey table in there, so he does not have any place to go now. He reports that he is distressed and tearful because he has been out of the Army for 10 years and nothing is better. Outside of his wife and kids (he has two), he reported having no friends and that he does not know how to make any. He has no hobbies or interest any longer. He stated he used to play video games for hours and hours but since he has kids, he does not want them to get into that habit. He reported that he liked to cook and tries to help around the house but gets told that he does it incorrectly. He and his wife have not considered therapy and he is not a member of any clubs or organizations. He reported that he talks to his father and younger sister at times but is not invested and is not interested and no longer speaks to his other sister or his mother. He reported that he is trying to be a machinist. He reported currently being in school for machining technology and that he does "decent," in school but admits it is very difficult for him to manage being in school and around other people. He avoids group work if he can. Right now, he is working as a machinist at a manufacturing company but reports that he does not know how it is going. He stated that he keeps telling himself to go talk to his boss but never does. He reports feeling like he does not fit in and is in a constant state of worry that he is going to get fired and does not know why. He shows up to work and tries, has been there nine months now and gets told all the time that essentially, he sucks but he does not know. He does not have any friends at work. He stated that if people try talking to him, he tries to get it over with as quickly as possible. He stated he has not engaged in therapy since that time. The examiner reported that it is clear he is suffering from severe PTSD symptoms. The examiner reported that the Veteran drinks two to three days per week to black out when he is not in school. When he is in school, he tries not to drink because it is too hard to manage work at school. However, if he is not working overtime and has time between work and school, he will drink on the way to school and in the parking lot at school. He was using cannabis but ran out a week ago and has not been able to get more. For VA rating purposes, the following PTSD symptoms were identified by the VA examiner in January 2020: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; neglect of personal appearance; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner remarked that the Veteran's symptoms are consistent with the diagnosis of PTSD caused by or resulting from combat trauma, and alcohol use disorder, moderate, which is secondary to PTSD as the Veteran uses alcohol to manage PTSD symptoms. The examiner also stated that the Veteran is diagnosed with a traumatic brain injury (TBI) but the examiner is unable to determine symptoms or severity. The examiner stated that the Veteran's PTSD and alcohol use disorder cause severe impairment in social and occupational functioning. The examiner opined that the related level of occupational and social impairment was total occupational and social impairment (the criteria for a 50 percent rating under Code 9411). The examiner explained that it was not possible to differentiate which impairment is caused by each menta disorder since the degree to which the Veteran's TBI is affecting his functioning is unknown at this time. However, the examiner stated that his PTSD and alcohol use are severe; alcohol is used to manage PTSD symptoms. Overall, the examiner concluded it is likely that PTSD has caused all of his social and occupational impairment. The disability picture derived from the evidence of record concerning the period in question, appears more closely aligned with the criteria for a 100 percent rating (i.e. total occupational and social impairment) than those for a 70 percent rating (i.e., occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood). This conclusion is consistent with the level of functioning otherwise shown (including by his own reports), and pursuant to the 2020 VA examiner's opinion that it is likely that PTSD has caused all of his social and occupational impairment. Accordingly, the Board finds that for the period on appeal since January 25, 2020, a 100 percent disability rating is more nearly approximated for the Veteran's service-connected PTSD with alcohol use disorder. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.