Citation Nr: 21040667 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-11 388A DATE: July 6, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with a history of polysubstance abuse prior to November 27, 2019 is denied. FINDING OF FACT 1. For the appeal period prior to November 27, 2019, the Veteran's service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW 1. For the appeal period prior to November 27, 2019 the criteria for an increased rating in excess of 70 percent for PTSD with a history of polysubstance abuse have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to May 1972. This case arises from an August 2014 decision by a Department of Veterans Affairs (VA) regional office. The Veteran appealed that decision and testified before the undersigned Veterans Law Judge in February 2019. A copy of the transcript is of record. This case was previously before the Board in June 2019 when the claims were remanded for an examination to determine the current severity of the Veteran's PTSD. During the course of the remand, the rating for the Veteran's PTSD was increased to 100 percent effective November 27, 2019, and entitlement to a total disability rating based on individual unemployability (TDIU) was granted from May 1, 2014the date the claim for increase was filedto November 27, 2019. As those ratings represent the maximum benefits available, the Board will not disturb them. However, the 70 percent rating assigned for the Veteran's PTSD prior to November 27, 2019, is not the highest rating available for that period, and to that extent, the appeal is once again before the Board. Increased Rating 1. Entitlement to a rating in excess of 70 percent for PTSD with a history of polysubstance abuse prior to November 27, 2019. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating 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 PTSD has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted where there is 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 that 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. Id. The maximum rating of 100 percent requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited. Rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi,16 Vet. App. 436, 442 (2002). Relevant evidence consists of VA treatment records, group therapy notes, statements from the Veteran, and VA examinations conducted in July 2014 and December 2019. The VA examination conducted in July 2014 reflects that the Veteran complained of intrusive thoughts, nightmares, difficulty concentrating, and hypervigilance, as well as avoidance of reminders of traumatic events. He also was noted to experience depression and feelings of guilt. He reported that he had been married for 41 years and had a "close and understanding relationship with his wife." He also reported strong relationships with his siblings, father, children, and grandchildren, although he expressed an inability to "feel joy overall." He reported having verbal outbursts of anger at work and conflicts with co-workers. On examination, the Veteran was alert, attentive, and oriented in all spheres, with intact attention and concentration. His memory and thought processes were intact, with no evidence of hallucinations, delusions, or paranoia. The examiner found his symptoms to cause a moderate functional impact, including occupationally, and concluded that his overall level of symptomatology caused occupational and social impairment with reduced reliability and productivity. June 2016 treatment records reflect that the Veteran was hospitalized for treatment of a self-inflicted gunshot wound. Follow-up treatment from later that year reflect monitoring for high suicide risk following the attempt in June. The Veteran has since engaged in treatment on an ongoing basis, including group counseling, notes from which reflect the Veteran's participation was routinely attentive and active. The group facilitator noted the Veteran reported passive suicidal ideation, but no acute indicators of psychiatric distress were observed or reported. Outpatient notes from an aftercare visit with the Veteran and his wife following the Veteran's residential program later in 2016 show the Veteran expressed he felt the program was helpful and informative and that he felt well supported by staff and fellow veterans. Additionally, he connected with several other veterans he was able to talk with. He reported that since being home he has visited his father, daughter, and stepdaughter and grandchildren. The Veteran's wife concurred at that time that she felt he was doing well. Additionally, the Veteran requested chaplain services, and he planned to work out with his wife several times per week. The Veteran was neatly dressed, well groomed, presented with supportive and caring wife, thought process was intact and goal directed. There was not current suicidal ideation, intent, or plan at the time. October 2016 pastoral care notes show the Veteran felt depressed and wanted to isolate. He acknowledged having a good week and weekend, however, and described how he learned that when he does not want to do something, he tries to do the opposite. For example, choosing to join his wife on a shopping trip with his wife rather than isolating. He expressed awareness of when he feels down, alone, hopeless or isolated. He stated engaging people helps to distract him from going inward. Notes from a December 2016 outpatient psychotherapy visit report the Veteran described a week of worsening depression with no energy, excessive sleeping, and not leaving the house. The Veteran described feeling tempted to used alcohol again to cope but resisted the urge. At the time of the visit, the Veteran stated the depression had subsided. He also reported that his depressive episodes typically last just one day and that lasting a week is unusual and not typical for him. He expressed having an established strategy to deal with such episodes and knowing that if his depression lasted longer than a week to contact his treatment providers. December 2016 group therapy notes show the Veteran was attentive and active. Additionally, the notes reflect the Veteran expressed an increase in suicidal ideation during the past two weeks following his last individual session. He reported that he was dropping out of the program. At the time of the group therapy, the Veteran denied acute suicidal ideation and stated that he continued to feel he could implement his safety plan if needed. He endorsed protective factors such as hopefulness for the future, dedication to his wife, and no access to current means. The therapist reported the Veteran discussed his concerns and progress and left the discussion with renewed motivation to continue treatment. September 2019 psychotherapy notes show the Veteran was doing well, stable, and not bothered by any suicidal ideation. The Veteran recounted how he got though the anniversary of his suicide attempt okay. A February 2019 letter from the Veteran's PTSD treatment provider reflects that the treatment provider had observed symptoms of disturbing recollections, avoidance, hyperarousal, and difficulty with concentration and memory. The provider noted the Veteran was compliant with his treatment regimen but would have difficulty working "in a fulltime, or consistent manner" and was ultimately unable to obtain or maintain employment. Following the Board's June 2019 remand, the Veteran was afforded a December 2019 VA examination. There, the examiner noted the Veteran has a diagnosis of PTSD as well as polysubstance uses disorder in sustained remission. The Veteran and his wife both outlined severe psychiatric symptoms and related functional impairment, supported by available records, including impaired relationships with family, limited engagement with friends and decreased enjoyment of activities, worsening mood and increased suicidal ideations, increased isolationism and irritability, persistent auditory perceptual disturbances, neglect of personal appearance and hygiene, a persistent danger of hurting himself (mild to moderate), and similar type symptoms. Provided this understanding of the impact of his psychiatric symptoms on his overall functioning, as well as over the past several years, this examiner is of the opinion that his mental health symptoms are resulting in total occupational and social impairment. Upon review of the record, the Board finds that for the period on appeal prior to November 27, 2019, the Veteran's PTSD symptoms most nearly approximated the criteria for a 70 percent evaluation. The Board finds that the evidence, as a whole, prior to November 27, 2019 is reflective of symptomatology causing occupational and social impairment with deficiencies in most areas (providing the basis for the 70 percent rating). However, total occupational and social impairment during this period was not shown. In that connection, the Board notes that the Veteran's reported social functioning has been consistent throughout the period on appeal, with consistent participation in a Veterans support group as well as an ongoing supportive relationship with his spouse and multiple other family members. Thus, while limited, such belies the finding of total social impairment. Moreover, although the Veteran was not employed prior to November 27, 2019, a rating of 100 percent is only warranted for both total social and total occupational impairment. As discussed above, such has not been shown in this case. Therefore, the Board concludes the criteria for a 100 percent rating for an acquired psychiatric disability have not been met, prior to November 27, 2019. See 38 C.F.R. § 4.130, DC 9411. The Veteran's own statements, treatment records, and examinations reflecting how his PTSD impacted him, overall, provide evidence against this claim, indicating that the problems cited within the 100 percent ratingand particularly total social impairmentwere not met prior to November 27, 2020 The Board thus finds that the Veteran's manifested symptoms for the period prior to November 27, 2019, are most closely approximated by the assigned 70 percent disability rating as discussed above. Thus, the criteria for a rating in excess of 70 percent for PTSD prior to November 27, 2019 have not been met. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.N. Bush, 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.