Citation Nr: 22015693 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-12 263 DATE: March 18, 2022 ORDER Entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for alcohol use disorder as secondary to PTSD is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and mood, without approximating total occupational and social impairment. 2. The Veteran's alcohol use disorder is secondary to his service-connected PTSD. CONCLUSIONS OF LAW 1. For the entire rating period on appeal, the criteria for a rating higher than 70 percent for PTSD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411 (2021). 2. The criteria for service connection for alcohol use disorder secondary to service-connected PTSD are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2008 to November 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD and assigned a 30 percent rating. In July 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed In September 2021, the Board increased the rating for PTSD from 30 to 70 percent and remanded the claim for an even higher rating to provide the Veteran with a VA examination for PTSD and consideration of entitlement to a TDIU. Thereafter, in a September 2021 rating decision, the RO implemented the Board's grant of a 70 percent rating for PTSD, effective November 3, 2013. As a 70 percent rating is not a full grant of benefits sought, the issue of entitlement to a rating higher than 70 percent remains on appeal. In January 2022, the RO denied entitlement to TDIU. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a rating higher than 70 percent for PTSD The Veteran is in receipt of a 70 percent disability rating for PTSD under 38 C.F.R. § 4.130, DC 9411. He seeks a higher rating. The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating is warranted if the evidence establishes 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; 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted 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. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in the rating criteria 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). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general Rating Formula for mental disorders is 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; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). For the reasons expressed below, the Board finds that the criteria for a rating higher than 70 percent are not met for PTSD under DC 9411. According to VA treatment records, the Veteran underwent an initial evaluation in February 2014 at which time he reported that he had been living in San Diego with his wife until the end of January 2014 but had moved back to Ohio to his parents' home following a domestic incident with his wife. She remained in San Diego while finishing college but planned to move to join him in May 2014 after finishing school. He described their current relationship and that with his parents as great. His leisure activities included watching movies, playing video games, fishing, shooting, playing with dogs, and playing basketball with friends. Occupationally, he was looking for a job. He reported suicidal ideation in December 2013 but denied any plan or intent. The Veteran reported avoiding places with a lot of people, sitting in a corner, increased irritability, hypervigilance, enhanced startle response, and concentration and sleep difficulties. The examiner noted that the symptoms were consistent with a diagnosis of PTSD and also noted a diagnosis of severe alcohol use disorder. In July 2014, it was noted the Veteran had been attending weekly individual therapy sessions. In September 2014, the Veteran reported that he was still unemployed, that he had sleep difficulties and that his wife had returned to San Diego to finish her degree. The Veteran's mood was not that good with constricted affect. His thought process was logical and linear, with no report of hallucinations, delusions, or current suicidal or homicidal thoughts. In November 2014, the Veteran underwent a VA PTSD examination, at which time the examiner confirmed a diagnosis of PTSD and alcohol use disorder, severe. In terms of social impairment, the examiner noted that the Veteran was married but currently living with his parents. He reported having a good relationship with his wife and parents. In terms of occupational employment, he reported that he was unemployed. He usually watched television and spent time with friends during the day. The Veteran reported that prior to his first deployment, he drank five to six drinks one or twice a week; after his first deployment, he drank five to six drinks daily; and after his second deployment, drank six to twelve drinks daily. He completed a residential substance abuse program in May 2014, was abstinent for one month, but currently drinks five alcoholic beverages once per week. On mental status examination, the examiner identified PTSD symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran reported a history of suicidal ideation without plan in December 2013 but there was no evidence of current lethality. He denied panic attacks, obsessive and compulsive behaviors, hallucinations, or delusions. The examiner concluded that the Veteran had 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 January 2015, the Veteran reported that he had begun working as a security guard for an oil company. His mood was stable, and he denied symptoms of depression, anxiety, hallucinations, delusions, or current suicidal or homicidal ideations. At a tele-visit in January 2016, the Veteran reported that he had stopped taking his medication since his last visit in January 2015. Over the past few months, he had become anxious, had increasing stress due to normal stuff like bills, and would perseverate, worry and not be able to concentrate. He was working as a security guard. He denied hallucinations, delusions, or current suicidal or homicidal ideations and was started back on medication. In November 2016, the Veteran reported his mood was not as upbeat as when he started on medication. He was still working as a security guard and denied hallucinations, delusions, or current suicidal or homicidal ideations. In February 2017, he reported being depressed, past episodes of suicidal ideation with no intent, and working as a security guard. In January 2018, the Veteran underwent a VA examination for PTSD, at which time the examiner continued diagnoses of PTSD and alcohol use disorder. In terms of social impairment, the examiner noted the Veteran lived with his wife, had close family and a couple of friends; that he socialized with others a couple of times a month, and that he had recreational activities. In terms of occupational impairment, the examiner noted that the Veteran reported working in security for oil and gas since 2014 to the present. He denied any problems in terms of work relationship but that he had been spoken to about three to four times because he had called off work three to four times per month in the last 12 months. He explained that he had not felt like going to work, was embarrassed at work, and was confused at times. He reported that his last suicidal ideation was fleeting in nature, the previous week, but denied any plan, attempts, or intent to harm himself. The Veteran also reported drinking six days per week, six to twelve beers over the course of about five hours. On mental status examination, the examiner noted that the Veteran's dress was casual, neat, and appropriate, with good grooming and hygiene. The Veteran was alert and oriented, with good attention and concentration. Mood was dysthymic with constricted range of affect; speech fluent and productive; thought process clear, coherent, and goal directed without evidence of formal thought disorder or psychosis. Judgement and insight were average. The Veteran reported fleeting passive suicidal ideation and denied homicidal ideation. The examiner identified PTSD symptoms of depressed mood and difficulty in establishing and maintaining effective work and social relationships. He indicated that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner further explained that the Veteran also reported missed days of work due to drinking and that the Veteran's PTSD and alcohol use disorder contributed equally to his impairment. At a hearing in July 2021, the Veteran testified that he deals with near-constant anxiety and panic, that it is extremely difficulty to communicate effectively even with people close to him, that his mind races making it difficult to complete simple tasks at work, that he has daily panic attacks, has been battling suicidal thoughts for years, and feels like he is living in survival mode. He testified that he began drinking in service to numb his pain. His wife added that her husband has an inability to handle stressful situations, organize and communicate his thoughts, tends to exaggerate and be completely irrational, and has daily panic attacks. She stated that he has missed several days of work due to the panic attacks and anxiety, and that his PTSD has affected their marital relationship. She further stated that he began drinking to self-medicate when his medications were not working for him, and that he has had to battle a drinking problem because of his PTSD symptoms. In December 2021, the Veteran was afforded a VA PTSD examination, at which time the examiner continued diagnoses for PTSD and alcohol use disorder. The examiner explained that the alcohol use disorder is secondary and directly related to his PTSD as he uses alcohol to self-medicate PTSD symptoms. In terms of social impairment, the examiner noted the Veteran lived with his wife, that their relationship had improved, and that he maintained close relationships with his parents and a close friend that he spent time with. The Veteran reported that he rarely went out to restaurants or other social events due to hypervigilance and anxiety and the examiner noted that he was independent with activities of daily living. In terms of occupational impairment, the examiner noted that the Veteran had been employed from September 2021 to the present in maintenance with Handover Fuel Stop but quit working one month earlier because the stress of the job was too much, and his wife was accepting of him not working. He felt high anxiety levels and stressed all the time. He had worked the night shift and the owner was a veteran who was understanding of time the Veteran took off due to mental health issues. On mental status examination, the examiner noted that the Veteran was appropriately groomed and casually dressed, with good eye contact and cooperative throughout. His speech was normal; mood was dysphoric; his affect and mood were congruent and constricted; thought processes were coherent, logical, and goal-directed; he had normal thought content and denied suicidal or homicidal ideations or intentions. He reported experiencing passive suicidal ideation without actual plan or intent. Sensorium was intact to person, place, time and situation, and insight, judgment, and impulse control intact. The examiner identified PTSD symptoms of suicidal ideation; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work or a worklike setting); flattened affect; panic attacks more than once a week; impairment of short term memory and long term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; depressed mood; anxiety; suspiciousness; and chronic sleep impairment. She indicated that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On review of all the evidence, the Board finds that a rating higher than 70 percent is not warranted. The Veteran's PTSD is not shown to result in both total social and occupational impairment. The Board recognizes that the Veteran's PTSD has impacted his ability to work, and as noted above, entitlement to a TDIU is the subject of the remand portion of this decision. Aside from such impairment, he has been found capable of managing his own financial affairs and appeared fully oriented throughout the pendency of the appeal. On mental status examinations, the Veteran's thought process, communication, attention, and concentration have been described as appropriate. He presented to his appointments adequately dressed and groomed. Moreover, there is no evidence of any delusions or hallucinations during the pendency of the appeal. While suicidal ideation was noted on some outpatient notes and at the VA examinations, the Veteran stated the thoughts were fleeting, and the examiners noted that he was at low risk for self-harm. In any event, suicidal ideation is contemplated by the already assigned 70 percent rating. While he has some impairment of memory, it does not rise to the level of memory loss for names of close relatives, occupation or his own name. Although the Veteran is shown to have some difficulty in maintaining social relationships due to his PTSD, total social impairment is not demonstrated. As discussed above, despite some difficulties, the Veteran has continued to maintain relationships with his wife and parents, and socializes with a friend, although at his house. He also takes part in recreational activities. Total occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. Overall, the Veteran's psychiatric symptoms do not equate in severity, frequency, or duration to total occupational and social impairment, nor have the symptoms demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. Additionally, the identified PTSD symptoms are properly contemplated by the currently assigned 70 percent disability rating. Accordingly, the Board concludes that a rating higher than 70 percent for PTSD is not warranted under DC 9411. 2. Entitlement to service connection for alcohol use disorder as secondary to PTSD. Service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the criteria for service connection for alcohol use disorder secondary to PTSD has been established. The December 2021 VA examiner indicated that the Veteran's alcohol use disorder was secondary to his PTSD, as the Veteran used alcohol to self-medicate his severe PTSD symptoms. Accordingly, service connection for alcohol use disorder as secondary to PTSD is granted. 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to a TDIU. A remand is required to obtain and clarify information regarding the Veteran's employment during the appeal. In the September 2021 remand, the Board determined that the issue of unemployability had been raised by the record and took jurisdiction of the issue. In a September 2021 letter to the Veteran, the RO asked the Veteran to complete and submit VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and if, possible, VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on VA Form 21-8940. In the VA Form 21-8940, the Veteran indicated that his disability affected full-time employment in November 2013, that he last worked full time on July 22, 2021, that $20,000 was his highest income, and that his total earned income for the past 12 months was $9000. In response to employment for the past five years, he listed wages for only two employers, with highest gross earnings of $2,000 per month from October 2017 to July 2021, and $1800 per month from September 2021 to November 2021. The Veteran also reported employment with a third employer from December 2015 but did not include any wage information. He also reported that he worked 32 hours a week but also took as much as 24 hours a week off due to his PTSD. It is unclear to what extent the Veteran was employed during the appeal, and if so, whether his work constituted marginal employment, or was substantially gainful. There is no record of confirmation of employment information from the Veteran's listed employers. While the Veteran was provided the VA Form 21-4192 to submit to his previous employers, there is no record of completed VA Forms 21-4192 on file. The Board notes that information from the Veteran's listed employers is relevant to the Veteran's TDIU claim. The matters are REMANDED for the following action: 1. Provide the Veteran with VA Form 21-4192, Request for Employment Information, and request that he obtain a completed employment information form from each of his employers, to include RHS, Rescare, and Handover Fuel Stop, during the pertinent appeal period. (Continued on the next page) 2. Ask the Veteran to provide information concerning his earnings for the period for which he seeks a TDIU for review in conjunction with his claim. 3. Thereafter, readjudicate the TDIU claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.