Citation Nr: 1404011
Decision Date: 01/29/14 Archive Date: 02/10/14
DOCKET NO. 08-32 048 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence for the period from July 20, 2005, to August 27, 2012, and in excess of 70 percent from August 28, 2012.
2. Entitlement to a total rating based on individual unemployability due to service-connected disability for the period from July 20, 2005, to August 27, 2012.
REPRESENTATION
Appellant represented by: Allan T. Fenley, Esq.
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The appellant served on active duty from January 1969 to January 1971.
This matter came to the Board of Veterans' Appeals (Board) on appeal from May 2007 and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial 30 percent rating effective July 20, 2005, and which denied a total rating based on individual unemployability due to service-connected disability.
In April 2010, the Board remanded the matter for additional evidentiary development. A review of the record shows that the RO has substantially complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).
While the matter was in remand status, in a September 2010 rating decision, the RO increased the initial rating for the appellant's service-connected PTSD to 50 percent, effective July 20, 2005. Thereafter, in a September 2012 rating decision, the RO increased the rating for the appellant's service-connected PTSD to 70 percent, effective August 28, 2012, and also awarded a total rating based on individual unemployability due to service-connected disability from that date.
Although a higher rating for PTSD was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned from the date of the award of service connection nor did the appellant withdraw his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Similarly, although a total rating based on individual unemployability due to service-connected disability was awarded effective August 28, 2012, the issue of the appellant's entitlement to a total rating based on individual unemployability prior to that date remains in appellate status as it is part and parcel of the claim for a higher initial rating for his service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).
FINDINGS OF FACT
1. For the period from July 20, 2005, to August 27, 2012, the appellant's service-connected PTSD with alcohol dependence was manifested by symptoms including feelings of depression and anxiety, nightmares, difficulty sleeping, memory impairment, irritability, and occasional panic attacks. His PTSD symptoms did not include suicidal ideation; obsessional rituals interfering with routine activities; illogical, obscure, or irrelevant speech; 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; or difficulty in adapting to stressful circumstances; nor did his symptoms produce occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.
2. For the period from August 28, 2012, the appellant's service-connected PTSD with alcohol dependence was manifested by symptoms which include feelings of depression and anxiety, nightmares, difficulty sleeping, memory impairment, irritability, and occasional panic attacks which have resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His symptoms do not include a gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; an intermittent ability to perform activities of daily living; disorientation to time or place; memory loss for names of his close relatives, his own occupation or his own name, nor have his symptoms produced total occupational and social impairment.
3. For the period from July 20, 2005, to August 27, 2012, the appellant's sole service-connected disability, PTSD with alcohol dependence, did not render him unable to secure and follow a substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 50 percent for PTSD with alcohol dependence were not met at any point during the period from July 20, 2005, to August 27, 2012, nor have the criteria for a rating in excess of 70 percent for PTSD with alcohol dependence been met at any time from August 28, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2013).
2. The criteria for a total rating based on individual unemployability due to service-connected disability were not met at any point during the period from July 20, 2005, to August 27, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to notify and assist
As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).
The issues adjudicated in this decision stem from an appeal of the initial rating assigned following an award of service connection. Under these circumstances, VCAA notice is not required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) ("[O]nce a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."); Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, neither the appellant nor his attorney has raised any allegations of prejudice regarding any notification deficiencies. Goodwin v. Peake, 22 Vet. App. 128 (2008).
With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Service treatment records are on file as are all post-service clinical records which the appellant has specifically identified and authorized VA to obtain. The appellant has also been afforded multiple VA psychiatric examinations in connection with his claims. The Board finds that the examinations are adequate in that they were based on an evaluation of the appellant and a review of the claims folder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations also include sufficient information upon which to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994).
For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issues now being decided. Again, neither the appellant nor his attorney has argued otherwise.
Background
In connection with his July 2005 original claim for the VA compensation benefits, the RO obtained VA clinical records dated from November 2003 to March 2006 which are negative for complaints or findings of PTSD.
At a May 2007 VA medical examination, the Veteran endorsed symptoms such as recurrent dreams of Vietnam, flashbacks, feelings of alienation, survivor guilt, sleep difficulties, difficulty controlling his anger, feelings of depression and anxiety, and concentration difficulties. He indicated that he had received no prior psychiatric care. He stated that he had worked in construction from 1971 to July 2005 after which he had retired on the recommendation of his doctor due to arthritis, Lyme disease, and Rocky Mountain spotted fever. He denied a history of getting into conflicts with others when he was working. The appellant indicated that he had been married to his second wife since 1993 and his marriage was going well. He also reported having a lot of close friends with whom he enjoyed drinking, playing pool, fishing and golfing. He interacted with his friends on a daily basis. On examination, the examiner noted that impulse control was okay and that there was no history of suicide attempts. The appellant was alert and oriented, maintained good eye contact, exhibited normal speech, and responded in a logical manner. He maintained personal hygiene and activities of daily living. He complained of memory problems and occasional panic attacks but exhibited no obsessive or ritualistic behavior. The diagnosis was PTSD. The examiner assigned a GAF of 65 to 70 due to PTSD as a result of depressed mood, anxiety, insomnia, and difficulty concentrating.
In a May 2007 rating decision, the RO granted service connection for PTSD and assigned an initial 30 percent rating, effective July 20, 2005. The appellant appealed the initial rating assigned by the RO and also claimed entitlement to a total rating based on individual unemployability due to service-connected disability.
In support of his claim, the appellant submitted an August 2007 VA Form 21-8940 on which he indicated that he had graduated from high school and had had a career working in construction and masonry. He indicated that he had been unable to work since July 2006, however, and that he was now in receipt of disability benefits from the Social Security Administration (SSA).
In support of the appellant's claim, the RO obtained records from SSA showing that the appellant had been awarded disability benefits effective in March 2006 due to discogenic and degenerative disorders of the back. Medical records used by SSA in reaching its disability determination include diagnoses of cervical and lumbar disc disease, Lyme disease, and Rocky Mountain spotted fever. These records, however, are silent for complaints or findings of psychiatric disability, including PTSD with alcohol dependence. Indeed, these records show that during a January 2005 health screening, the appellant indicated that his work was not stressful to him. A depression screening in March 2006 was similarly negative.
In pertinent part, additional VA clinical records received in support of the appellant's claim show that a depression screening in December 2006 was negative. A PTSD screening in April 2007 was also negative. In July 2007, the appellant sought treatment from VA for PTSD. His complaints included nightmares, difficulty sleeping, feelings of detachment from others, irritability, and difficulties in concentrating. He denied suicidal or homicidal ideation. There was no evidence of hallucinations or delusions.
The appellant again underwent VA medical examination in August 2010. He indicated that he did not receive regular psychiatric treatment. The appellant reported that he remained married and that his marriage was good. He continued to enjoy leisure activities and socializing with his friends. The appellant also reported that he was unemployable due to physical conditions rather than mental health symptoms. The examiner noted that the appellant had not experienced absence or loss of employment in the last year related to mental health symptoms. She noted that, overall, the appellant's level of functioning appeared to be no more than mildly impaired relative to mental health symptoms, with no change since the last VA medical examination both with respect to occupational and social impairment. She noted that the appellant reported problematic consumption of alcohol representing a significant impairment of functioning. The examiner concluded that the appellant's social functioning remained impacted by PTSD symptoms including anxiety, irritability, sleep disturbances, verbal outbursts, occasional panic attacks, nightmares, and increased abuse of alcohol to help manage his symptoms, primarily sleep disturbances. She indicated that his occupational functioning remained no more than mildly impaired from occasional memory problems when he was working. She noted that he had had no difficulty getting along with others or with job terminations. She indicated that there was no indication that he was unable to obtain or retain work from a mental heath standpoint. She indicated that it was her opinion that the appellant was able to work relative to a mental health standpoint. The diagnoses were PTSD and alcohol abuse. She indicated that a GAF score of 55 was appropriate due to these diagnoses.
In a September 2010 rating decision, the RO increased the initial rating for the appellant's PTSD to 50 percent, effective July 20, 2005.
The appellant again underwent VA medical examination in August 2012. After examining the appellant and reviewing the claims folder, the examiner diagnosed the appellant as having PTSD and alcohol dependence and concluded that these disabilities resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the appellant's symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired judgment, impaired abstract thinking, impaired impulse control, and disturbances in motivation and mood. She indicated that the appellant had no other symptoms attributable to PTSD. The examiner concluded that the appellant retained an adequate ability to establish and maintain effective work relationships. She also noted that he had no difficulty in social relationships and had had no work-related difficulties in this area when he was employed. He retained the ability to work with the public, coworkers, and supervisors. His main complaint regarding work impairment related to cognitive functioning, i.e. memory deficits which would likely impact his ability to learn new work material, especially that of a complex nature. Additionally, the appellant would likely require more time than others to complete novel work tasks due to a reduction in concentration. He might also be prone to making mistakes occasionally in his work, especially on detail oriented tasks or those which were complex in nature.
Applicable Law
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).
Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.
The criteria for rating PTSD are contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411.
Under those criteria, a 50 percent rating is assigned when there is objective evidence demonstrating 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, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is warranted when there is objective evidence demonstrating 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, or 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.
A 100 percent rating is warranted when there is 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 and place, memory loss for names of close relatives, own occupation, or own name.
In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, 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 American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).
More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed.Cir.2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118. The Federal Circuit indicated that "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id.
A Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV)).
Scores ranging from 61 to 70 reflect some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Lesser scores reflect increasingly severe levels of mental impairment. Id.
In exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115 (2008).
VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id.
Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Disabilities resulting from a common etiology or a single accident, or affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a).
It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b).
The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Analysis
Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 50 percent for PTSD with alcohol dependence for the period from July 20, 2005, to August 27, 2012; a rating in excess of 70 percent for PTSD with alcohol dependence from August 28, 2012; and a total rating based on individual unemployability due to service-connected disability for the period from July 20, 2005, to August 27, 2012.
As summarized in detail above, the evidence shows that for the period from July 20, 2005, the date of the initial award of service connection, to August 27, 2012, the appellant's PTSD with alcohol dependence was manifested by symptoms which included feelings of depression and anxiety, as well as nightmares, difficulty sleeping, memory impairment, irritability, and occasional panic attacks. Based on these factors, the RO has awarded a 50 percent disability rating for this period.
The Board finds, however, that the preponderance of the evidence is against the assignment of an initial rating in excess of 50 percent for PTSD with alcohol dependence for any period from July 20, 2005, to August 27, 2012. To warrant a rating in excess of 50 percent, the evidence must show 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); inability to establish and maintain effective relationships, or other similar symptoms.
In this case, repeated examination has shown that the appellant's PTSD with alcohol dependence was not manifested during this period by obsessional rituals which interfered with his activities and he has not contended otherwise. Additionally, the appellant's speech was not shown to be illogical, obscure, or irrelevant. For example, at the May 2007 and August 2010 VA examinations, his speech was determined to be normal and clear and his thought process was without abnormality, including hallucinations or suicidal or homicidal ideation. Mental status examination was also characterized as normal with no impairment in orientation, etc.
Similarly, although the appellant reported occasional panic attacks during the period in question, the record does not show, nor does the appellant contend, that he had near continuous panic attacks. Although he reported feelings of depression, the record does not show, nor has he contended, that he suffered from near-continuous panic or depression which affected his ability to function independently, appropriately and effectively. Indeed, VA medical examinations in May 2007 and August 2010 expressly noted that the appellant's PTSD symptoms did not prevent him from maintaining activities of daily living.
The Board also notes that although the appellant reported estrangement from his daughter, he was able to maintain a good and stable marriage. He also reported enjoying regular socializing with his many friends. Although the appellant reported difficulty with irritability and controlling his anger, he was not shown to have unprovoked irritability or periods of violence during the period in question. There were also no findings of spatial disorientation; again, the appellant was consistently described as oriented in all spheres. In addition, the appellant's hygiene was consistently noted to be acceptable.
Overall, the Board concludes that for the period from July 20, 2005, to August 27, 2012, the appellant's service-connected PTSD with alcohol dependence was not shown to cause occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, etc. Although the appellant retired from work in the construction and masonry fields in 2005 or 2006, he states that it was due to physical limitations, not psychiatric symptomatology. This is consistent with the documentation obtained from SSA which contains no indication of disability due to psychiatric symptomatology. In addition, VA examinations consistently showed that the appellant's PTSD with alcohol dependence did not cause any significant occupational impairment during this period. In addition, in his free time, the appellant admitted to enjoying socializing with his many friends and engaging in leisure activities such as fishing. The Board also notes that for the period in question, VA examiners have assigned GAF scores of 55 and 65, consistent with a rating no higher than the currently-assigned 50 percent rating.
In summary, the Board has considered all of the appellant's PTSD with alcohol dependence symptoms that affect his level of occupational and social impairment. After so doing, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 50 percent for the period from July 20, 2005, to August 27, 2012. The Board finds that overall record does not establish that the appellant's PTSD with alcohol dependence during this period was manifested by symptomatology which more nearly approximated a 70 percent or higher rating. He did not exhibit symptoms of the kind listed in the 70 percent rating criteria during that period, nor any others of similar severity, frequency or duration, that caused occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood during the period in question.
Additionally, although the appellant's service-connected PTSD with alcohol dependence did not meet the criteria for an initial rating in excess of 50 percent for the period from July 20, 2005, to August 27, 2012, the Board has also considered his entitlement to total disability rating based on individual unemployability during that period, as it is a component of the claim for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board concludes, however, that the preponderance of the evidence is against the claim.
During the period in question, the appellant's sole service-connected disability was PTSD with alcohol dependence, rated as 50 percent disabling. He therefore did not meet the percentage requirements for a total rating based on individual unemployability under 4.16(a)a. The Board further finds that the record contains no indication that his service-connected PTSD with alcohol dependence disability, in and of itself, rendered him unable to secure and follow a substantially gainful occupation during that period, warranting an extraschedular rating under 4.16(b).
Again, the record shows that the appellant has not worked since 2005 or 2006. Repeated VA medical examinations, records from SSA, and the appellant himself, however, all indicate that it was his physical limitations which prevented him from working during the period in question, not his service-connected PTSD. Again, examinations conducted in May 2007 and August 2010 showed that the appellant's PTSD with alcohol dependence did not prevent him from obtaining and retaining substantially gainful employment during the period in question. The Board notes that the record on appeal contains no other medical or vocational opinions which contradict these conclusions. Under these circumstances, a total rating based on individual unemployability due to service-connected disability is not warranted for the period from July 20, 2005, to August 27, 2012.
As set forth above, effective August 28, 2012, the RO has assigned a 70 percent rating for the appellant's PTSD with alcohol dependence, as well as a total rating based on individual unemployability due to service-connected disability. After considering the record, the Board concludes that the preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent for PTSD with alcohol dependence from August 28, 2012.
In order to warrant a schedular rating in excess of 70 percent, the evidence must show that the appellant's PTSD with alcohol dependence is manifested by 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 and place, memory loss for names of close relatives, own occupation, or own name.
None of these criteria has been met. At the VA medical examination in August 2012, the symptoms delineated above were specifically noted by the examiner to be absent. Neither the appellant nor his representative has specifically contended otherwise nor have they specifically identified any other relevant evidence indicating that the appellant's PTSD with alcohol dependence produces such symptoms. Additionally, although the examiner noted that the appellant's memory impairment and difficulty concentrating would impact his ability to complete some types of tasks, she concluded that he retained an adequate ability to establish and maintain employment. Additionally, she noted that the appellant had no impairment in social functioning due to his service-connected PTSD with alcohol dependence.
In summary, the Board has considered all of the appellant's PTSD with alcohol dependence symptoms that affect his level of occupational and social impairment. After so doing, the Board concludes that the preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent for the period from August 28, 2012. The Board finds that overall record does not establish that the appellant's PTSD with alcohol dependence during this period was manifested by symptomatology which more nearly approximated a 100 percent schedular rating. He does not exhibited symptoms of the kind listed in the 100 percent rating criteria, nor any others of similar severity, frequency or duration, that cause total occupational and social impairment.
In reaching its decisions above regarding the appropriate rating for the appellant's service-connected PTSD with alcohol dependence, the Board has also considered whether the case should be referred for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). In this case, however, the record does not reflect any periods of hospitalization for the appellant's service-connected PTSD with alcohol dependence, nor is there evidence that his disability markedly interferes with his employment, beyond that contemplated by the schedular criteria. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Here, the rating criteria reasonably describe the appellant's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted.
ORDER
Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence for the period from July 20, 2005, to August 27, 2012, and in excess of 70 percent from August 28, 2012, is denied.
Entitlement to a total rating based on individual unemployability due to service-connected disability for the period from July 20, 2005, to August 27, 2012, is denied.
______________________________________________
Cheryl L. Mason
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs