Citation Nr: 21041857 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-01 321 DATE: July 10, 2021 ORDER An increased rating for posttraumatic stress disorder with alcohol use disorder, which is currently 70 percent disabling is denied. FINDING OF FACT For the entire period of appeal, the Veteran's PTSD is productive of a disability picture that more nearly approximates that of occupational and a social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD with alcohol use disorder for the period of appeal from December 29, 2016, 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 on active duty from August 2012 to June 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). There were originally four issues that came to the Board on appeal; three service connection denials for hearing loss, back disability, and alcoholism secondary to a service-connected psychiatric disability, and one denial of increased rating for the psychiatric disability, which was then rated at 30 percent. The Board denied the hearing loss service connection claim and remanded the other three in January 2020. While on remand, the RO granted service connection for the back disability, and determined based on a recent VA examination that the alcohol use disorder was already service-connected as a component of the Veteran's psychiatric disability diagnosed primarily as Post Traumatic Stress Disorder (PTSD). The only issue left for the Board to decide now is the increased rating claim for PTSD, which the RO already increased from 30 to 70 percent before returning the issue to the Board. The Veteran testified at a videoconference hearing in November 2019 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In January 2020, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 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 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 civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 Increased ratings for PTSD. The rating criteria for rating mental disorders, including anxiety disorder and PTSD, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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); inability to establish and maintain effective relationships. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. An increased rating for posttraumatic stress disorder with alcohol use disorder, which is currently rated 70 percent disabling. The current 70 percent rating has an effective date from the date of the initial claim, December 29, 2016. The period on appeal starts this date. The AOJ initially granted service connection for anxiety disorder in a June 2017 rating decision. At that time a 30 percent evaluation was assigned effective December 29, 2016. During the pendency of the appeal an increased 70 percent evaluation was granted for the entire period on appeal. Thus, the only appeal left to decide is whether the Veteran's PTSD should be given the next higher disability rating which is total, 100 percent disability. The Veteran's records contain a letter from Dr. M. of the Center for Collaborative Psychology dated April 2017 indicating the Veteran was in treatment for Generalized Anxiety Disorder and Dysthymia between January 2014 and September 2014, to include while still on active duty. The Veteran exited service in June 2014 but did not apply for disability compensation until December 2016. In his first VA PTSD examination in June 2017, the Veteran had a diagnosis of Generalized Anxiety Disorder. The Veteran submitted a written statement dated December 2016 in which he described being distressed by events during a weeklong combat outpost defense in June 2013. He reported another soldier was cut up badly and the Veteran found it difficult being in a heightened state of alertness for what he experienced as a long period of time. He reported having nightmares about this week and believing it had a long-term effect on him and his psychological well-being. He further stated "Each and every day since these incidents I have had flashbacks to these incidents of both the injured soldier and the stress of the IED and several concussions that I experienced. The Veteran reported that he is still shaken easily, easily agitated, has recurring nightmares, and uses alcohol as a suppression to these memories. He is always on edge and ready to snap at any point of the day when the littlest thing goes wrong. He instantly feels that nothing is going to work and enters a depressive state. The Veteran reported he feels anxious often, especially when he is driving. He particularly worries about breaking down or being late. He also worries about the future, failing, and his relationships. Veteran indicated the worry feels out of control, and he experiences muscle tension, is irritable, and becomes easily fatigued. He reported these symptoms had all emerged by the middle of his Army career, during the summer. He recalls having insomnia when he went home on leave. At the time of the 2016 VA examination, the Veteran reported he has been with his current girlfriend for 2 years. They live together and get along well. He has a 6-year-old stepdaughter and he does well with her. However, the Veteran reported having difficulty trusting his girlfriend and his family members. He spends his time reading news on his laptop. He denied difficulty making or keeping friends at any time. Now, he has a select few friends. He is in college and his classmates are much younger than him, which makes it difficult for him to connect with them. Veteran has attended university post-military, and he has one semester left. He anticipates earning a bachelor's degree in history. He had been working at a kennel and he now substitute teaches. Veteran denied problems with this employment. Records indicate the Veteran was referred to the Army Substance Abuse Program (ASAP) in December 2013 as the result of underage use of alcohol in December 2013. Veteran reported he began drinking alcohol while in the Army and self-enrolled himself in ASAP around November 2013. He indicated he successfully completed the program. Currently, he drinks a six-pack of beer about 3 times a week. His girlfriend, mother, and sister are worried about his alcohol consumption and this causes tension in his relationships. The Veteran denied other impairment associated with his alcohol use. He indicated he drinks to manage his anxiety. The Veteran's level of disability as determined by the 2013 examiner was 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. In June 2020, the Veteran had his only other VA mental health examination of record. In this examination, the Veteran was diagnosed with PTSD. The Veteran was also diagnosed with Severe Alcohol Use Disorder. The examiner said he could not distinguish the symptoms from the two disorders or determine their individual impact because they overlap. The June 2020 examiner assessed the Veteran's mental occupational and social impairment as causing reduced reliability and productivity. At the 2020 exam the Veteran reports he lives in NJ with his girlfriend of four years. Veteran denied having any children and has never been married. Veteran reported that he is "closed off" with his feelings and "isolates" himself and continues to withdraw from his social world. He noted that "everyone in his life knows this." The Veteran is a Land Surveyor and has been doing this work for approximately three years. Veteran reported that he needed to change positions due to his chronic PTSD. He noted that he is constantly driving around to new and dangerous places that has led to severe mental health issues that exacerbate his PTSD. Veteran reported that he continues to study engineering and plans to complete his degree in spring 2021. The Veteran has been in mental health treatment for three years for PTSD. He attends his local VA center. He did report that since the pandemic, he has not been able to attend face-to-face sessions. The Veteran is not prescribed any psychotropic medications at this time and reported that he continues to drink alcohol daily. He reported that he will drink a 12-pack of beer and/or several glasses of Whiskey per evening. He did note that his alcohol intake has increased since the pandemic. The Veteran reported that his mental health functioning has worsened since his last assessment. The Board also finds that the Veteran's psychiatric disability has worsened. The Veteran's 2020 exam shows the following symptoms: depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, 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, and the inability to establish and maintain effective relationships. Additionally, the frequency and severity of these symptoms have increased. The examiner reiterated that the Veteran's Alcohol Use Disorder is secondary to and a result of his PTSD. It is not possible to differentiate what portion of each symptom is attributable to each diagnosis, because the diagnoses are due to the same causes and are exacerbated by the same triggers. The Board also finds that the Veteran's symptoms have not been of such frequency and severity to result in total occupational and social impairment to warrant a 100 percent rating under Diagnostic Code 9411. The Veteran currently has a 70 percent disability rating. In order to warrant the next higher rating of 100 percent disability, his symptoms must cause 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. 38 C.F.R. § 4.130. There is no doubt that the Veteran has had serious symptoms; however, a 100 percent rating requires total occupational and social impairment. As discussed above, the Veteran's symptoms do not reflect total social impairment, as he has maintained a relationship with his girlfriend and her child, attends university classes, teaches, and is gainfully employed. Moreover, the 70 percent rating granted herein reflects that the Veteran's symptoms are quite severe. The Board finds that the Veteran's symptoms have not been of such a level to be akin to total occupational and social impairment. While the Veteran clearly has occupational and social impairment, the fact that he can retain relationships with his family, maintain employment, and study engineering, he does not have total impairment. While he has several symptoms from his PTSD that impact his functioning, none of them are like the type, degree, or effects suggested by those listed in the criteria for total occupational and social impairment. As such, the Board does not find that the Veteran's symptoms are of such frequency, severity, and duration that they result in total occupational and social impairment to warrant a higher 100 percent evaluation at any point during the period of appeal. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, 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.