POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from July 1961 to August 1985, appeals the rating assigned for posttraumatic stress disorder (PTSD) with alcohol and prescription medication use disorder. Service connection for this condition was established effective May 21, 2015. The veteran sought an increased rating, challenging the prior 30 percent rating assigned before November 30, 2016, and seeking a higher rating than the 70 percent assigned from November 30, 2016, forward. The Board reviewed VA examinations from August 2015 and August 2017, along with VA treatment records from October, December 2015, and March, May, June, July, August, and September 2016. The veteran's spouse provided a statement detailing the veteran's symptoms and their impact on relationships since service in Okinawa. The veteran also provided statements describing his symptoms, including memory loss and difficulty with relationships. The Board found the veteran's own statements and treatment records, particularly those documenting chronic feelings of not caring if he died and hearing sounds associated with dying men during evacuation missions, more persuasive than the VA examiners' opinions, which suggested lesser impairment. The Board concluded that the veteran's symptoms warranted a 70 percent rating throughout the appeal period, finding deficiencies in most areas of occupational and social functioning. However, the Board determined that the evidence did not support a total occupational and social impairment, citing the veteran's ongoing relationships and lack of gross impairment in thought processes or hygiene. The Board also noted the veteran's retirement as an owner of an asbestos removal company, indicating some level of continued function. The Board considered the doctrine of reasonable doubt but found the preponderance of evidence supported the 70 percent rating, not a higher one. The issue of TDIU was not raised by the veteran.

Rationale

Veteran's own statements and VA treatment records more persuasive than VA examiners' opinions; Symptoms documented in treatment records (hearing moaning/crying, chronic feelings of not caring if he died) support 70% rating; Symptoms do not meet criteria for 100% rating (no gross impairment, total occupational/social impairment, or persistent danger to self/others)

Full Decision Text

Citation Nr: 18114408
Decision Date: 06/28/18	Archive Date: 06/27/18

DOCKET NO. 16-40 970A
DATE:	June 28, 2018
ORDER
Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) with alcohol and prescription medication use disorder, throughout the rating period on appeal, is granted, subject to the law and regulations governing the payment of monetary benefits.
FINDING OF FACT
Throughout the rating period on appeal, the most probative evidence of record reflects the Veteran’s PTSD with alcohol and prescription medication use disorder was manifested by symptoms productive of functional impairment comparable, at worst, to occupational and social impairment with deficiencies in most areas.
CONCLUSION OF LAW
Throughout the rating period on appeal, the criteria for an initial rating of 70 percent, but no higher, for PTSD with alcohol and prescription medication use disorder, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from July 1961 to August 1985. 
1. Entitlement to higher staged initial evaluations for PTSD with alcohol and prescription medication use disorder, rated 30 percent prior to November 30, 2016, and 70 percent from November 30, 2016
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).
Throughout the rating period on appeal, the Veteran’s PTSD with alcohol and prescription medication use disorder has been rated as 30 percent disabling prior to November 30, 2016, and 70 percent disabling from November 30, 2016, under Diagnostic Code 9411 for PTSD.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).  Service connection has been established for PTSD with alcohol and prescription medication use disorder effective from May 21, 2015.  As such, the rating period for consideration on appeal is from May 21, 2015.
Under Diagnostic Code 9411, a 30 percent evaluation requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411.
A 50 percent rating is prescribed when there is evidence of 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.  Id.
A 70 percent rating is prescribed when there is evidence of 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. 
A 100 percent rating is prescribed when there is evidence of 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
 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. 
A 100 percent rating is prescribed when there is evidence of 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.  Id.
The Veteran was afforded two VA examinations during the course of this appeal, specifically PTSD disability benefits questionnaires were obtained in August 2015 and August 2017.  The August 2015 VA PTSD examiner endorsed symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, and chronic sleep impairment, and found the Veteran’s level of occupational and social impairment with regard to all mental diagnoses was best characterized as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.  
The August 2017 VA PTSD examiner noted that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, 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, flattened affect, 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 an inability to establish and maintain effective relationships.  The August 2017 VA PTSD examiner found the Veteran’s level of occupational and social impairment with regard to all mental diagnoses was best characterized as occupational and social impairment with reduced reliability and productivity.  
Additionally, VA treatment records dated during the pendency of the claim also documented the Veteran’s psychiatric symptomology.  In this regard, October 2015 VA treatment records documented, in part, that the Veteran noticed that with medication he was less irritable, that he could take step back and not get as angry as before; however, he also noticed his sleep was poor, he had nightmares twice a week, and was not as decisive as he used to be.  October 2015 VA treatment records further reported, in part, that the Veteran did not really talk to anyone other than his church group, lived with his wife and grandson, was unhappy all the time, and had no friends as he did not want to get close to people.  Significantly, an October 2015 VA treatment record documented, in part, the Veteran reported ongoing chronic feelings of not caring much if he were to die but denied any active wish to die.  Further, in a December 2015 VA treatment record, the Veteran described, in part, that he would hear things like someone calling for help since he flew evacuation missions out of Vietnam.
In a March 2016 VA treatment record, the Veteran reported examples of several triggers he tried to avoid, including hospitals (and other reminders of doctors and nurses on planes), crowded environments (stores), loud noises, arguments, and watching TV or movies that reminded him of Vietnam or military deaths.  He reported he had a recent nightmare that woke him up sweating, and the feeling of distress stayed with him, making him feel down and out of sorts for the past few days.  He also reported he occasionally heard voices of people moaning and crying (sounds that he associated with what he heard from the dying men on the plane).  He also noted there were some experiences he had that he had not shared with anyone and was not sure if he was ready to talk about.
Further, VA treatment records, including in March 2016, May 2016, August 2016 and September 2016 also endorsed a diagnosis of major depressive disorder.  Thus, to extent that the Veteran’s PTSD with alcohol and prescription medication use disorder included symptoms related to other psychiatric diagnoses, such as major depressive disorder, which have not been clinically distinguished from the service-connected PTSD with alcohol and prescription medication use disorder, the Board has considered the Veteran’s PTSD with alcohol and prescription medication use disorder to encompass such symptoms.  See generally Mittleider v. West, 11 Vet. App. 181 (1998).  
In support of the Veteran’s claim, in statement dated in a July 2015, the Veteran’s spouse reported, in part, she had witnessed the Veteran’s trouble sleeping, nightmares, panic attacks, mood swings, and violent domestic behavior, both verbal and physical
 major depressive disorder.  Thus, to extent that the Veteran’s PTSD with alcohol and prescription medication use disorder included symptoms related to other psychiatric diagnoses, such as major depressive disorder, which have not been clinically distinguished from the service-connected PTSD with alcohol and prescription medication use disorder, the Board has considered the Veteran’s PTSD with alcohol and prescription medication use disorder to encompass such symptoms.  See generally Mittleider v. West, 11 Vet. App. 181 (1998).  
In support of the Veteran’s claim, in statement dated in a July 2015, the Veteran’s spouse reported, in part, she had witnessed the Veteran’s trouble sleeping, nightmares, panic attacks, mood swings, and violent domestic behavior, both verbal and physical towards her and her five children after the Veteran flew Aeromedical C-141 missions while stationed in Okinawa during 1972 to 1975.  She stated that she asked the Veteran what happened or what he saw during these missions, and he withdrew and exhibited periods of depression accompanied by heavy drinking of alcohol.  When he did open up at times, he would talk about fear of dying, seeing people die on the aircraft, and hearing men screaming, crying, and moaning and the constant atmosphere of pain and misery in their eyes.  The Veteran’s spouse stated she had been married to the Veteran for 54 years and had learned to support his ups and downs, his being hot and cold, his being quiet and aggressive, and his isolationist behavior.  
In a statement dated in August 2015, the Veteran reported, in part, he had issues sleeping, concentrating, anxiety attacks, panic attacks two to three times a week, depression affecting the ability to function independently at times, mood swings, and irritability towards folks that affected certain relationships.  He further reported, in part, his memory had been affected, and that he wrote things down and studied information repeatedly.  In his May 2016 notice of disagreement, the Veteran reported, in part, depression, short-time and long-term memory impairment, severe mood swings, difficulty with relationships, and difficulty with relationships and certain social environmental situations.  In this regard, the Veteran and his spouse are competent to attest to the factual matters of which they have first-hand knowledge, such as the observable symptoms of his PTSD with alcohol and prescription medication use disorder.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, the Board finds these statements to be credible and they are afforded significant probative weight.
Thus, in weighing the evidence, the Board finds Veteran’s symptoms of PTSD with alcohol and prescription medication use disorder more closely approximate the evaluation for 70 percent, but not higher, throughout the rating period on appeal.  While the Board notes that the August 2015 and August 2017 VA examiners endorsed lesser degrees of impairment, the Board finds that this assessment is outweighed by other evidence, in particular, it is outweighed by evidence dated prior to November 30, 2016 as such is the period for which a 30 percent evaluation has been assigned.  Specifically, this evidence includes the Veteran’s own description of his symptoms, such as memory loss, as described in August 2015 and May 2016 statements, as well as the clinical evidence of record.  Notably, as described above, the Veteran, in an October 2015 VA treatment record described ongoing chronic feelings of not caring much if he were to die but denied any active wish to die and in December 2015 and March 2016 VA treatment records, he described that he would hear things like someone calling for help, which is generally reflective of a 70 percent evaluation.  Thus, for these reasons, the Board finds that a rating of 70 percent is warranted throughout the rating period on appeal.  Although some of the symptoms listed as examples for a 70 percent rating have not been evident, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21 (2017).  Thus, the Board finds that there has as likely as not been occupational and social impairment with deficiencies in most areas throughout the rating period on appeal.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013).
Although a 70 percent rating is warranted for PTSD with alcohol and prescription medication use disorder throughout the rating period on appeal, an even higher rating is not warranted.  The evidence has not shown that the Veteran’s PTSD with alcohol and prescription medication use disorder has resulted in total occupational and social impairment at any point in the rating period on appeal.  The Board recognizes that the record reflected symptoms such as memory loss, there is no indication that such was for the names
 there has as likely as not been occupational and social impairment with deficiencies in most areas throughout the rating period on appeal.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013).
Although a 70 percent rating is warranted for PTSD with alcohol and prescription medication use disorder throughout the rating period on appeal, an even higher rating is not warranted.  The evidence has not shown that the Veteran’s PTSD with alcohol and prescription medication use disorder has resulted in total occupational and social impairment at any point in the rating period on appeal.  The Board recognizes that the record reflected symptoms such as memory loss, there is no indication that such was for the names of close relatives, or the Veteran’s own name or occupation.  Furthermore, while the Veteran described ongoing chronic feelings of not caring much if he were to die, he denied any active wish to die, repeatedly denied suicidal ideation, and he was not in persistent danger of hurting self or others.  Further, he did not exhibit grossly inappropriate behavior.  Additionally, August 2015, March 2016, May 2016, June 2016, July 2016, August 2016, and September 2016 VA treatment records documented the Veteran was oriented to person, time, place, and purpose of visit, thus disorientation to time or place was not shown.  Further, March 2016, May 2016, June 2016, July 2016, August 2016, and September 2016 VA treatment records characterized the Veteran’s general appearance as with adequate hygiene and casual dress, his speech was within normal limits of rate, rhythm, volume, and tone, and his thought processes was coherent, organized, with no indication of thought disorder or flight of ideas and/or content relevant to presenting concerns.  Thus, gross impairment in thought processes or communication, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) were not demonstrated.
Although the Veteran was socially isolated to some extent, for example he described that he did not have any friends in a June 2016 VA treatment record, the Veteran has maintained a few social and personal interactions.  Specifically, the August 2015 VA examiner noted the Veteran had been married for 53 years, had five children, and had a close relationship with his wife and children.  The August 2015 VA examiner also reported that the Veteran was one of six children and reported a close relationship with his siblings.  Further, as noted above, an October 2015 VA treatment record reported the Veteran did not really talk to anyone other than his church group, which provided an indication of some personal relationships in a church setting.  
As such, the Board finds that the Veteran’s symptoms do not warrant a rating higher than 70 percent at any point during the appeal period.  In making this determination, the Board considered the application of “staged” ratings, but found no additional distinctive periods where the Veteran’s service-connected PTSD with alcohol and prescription medication use disorder met or nearly approximated the criteria for higher rating other than that which has already been granted.  In reaching this decision, the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against a rating higher than or separate from that already assigned for PTSD with alcohol and prescription medication use disorder, the doctrine is not for application.  In sum, resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s PTSD with alcohol and prescription medication use disorder, has been shown to result in functional impairment no worse than deficiencies in most areas, during the entire appeal period.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  
Additionally, the United States Court of Appeals for Veterans Claims has held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability.  Id. at 454.  Although the record reflects the Veteran’s PTSD with alcohol and prescription medication use disorder has had a functional impact, the Veteran has not asserted that he was unemployable due to his service-connected psychiatric disorder at issue in this appeal.  In this regard
IU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability.  Id. at 454.  Although the record reflects the Veteran’s PTSD with alcohol and prescription medication use disorder has had a functional impact, the Veteran has not asserted that he was unemployable due to his service-connected psychiatric disorder at issue in this appeal.  In this regard, a May 2016 VA treatment record documented the Veteran was the retired as an owner of an asbestos removal company.  Therefore, the issue of entitlement to a TDIU is not raised in this case.
Finally, the Board has considered the Veteran’s claim and decided entitlement based on the evidence or record.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 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). 
 
Lana K. Jeng
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Espinoza, Counsel