Citation Nr: 1201399	
Decision Date: 01/13/12    Archive Date: 01/20/12

DOCKET NO.  08-30 300	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for headaches, claimed due to undiagnosed illness.  

3.  Entitlement to service connection for muscle aches, claimed due to undiagnosed illness.  

4.  Entitlement to an increased rating for post-traumatic stress disorder, rated 50 percent prior to April 28, 2009, 100 percent from then through May 31, 2009, 50 percent from June 1, 2009 through July 28, 2010, and 70 percent on July 29, 2010.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The Veteran performed active military service from January 1989 to August 1992.

This appeal arises to the Board of Veterans' Appeals (Board or BVA) from January 1996 and later-issued rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

The Board's jurisdiction derives from a claimant's notice of disagreement (hereinafter: NOD).  Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); Garlejo v. Brown, 10 Vet. App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed).  When the Board has jurisdiction over a particular matter, that jurisdiction is "mandatory".  In the Matter of Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997), vacated in part on other grounds sub nom.  See also Cox v. West, 149 F.3d 1360, 1365 (Fed.Cir.1998).  See also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (an unaddressed NOD requires a remand of the issue involved); VAOPGCPREC 16-92.  

The above-cited authorities require the Board to acknowledge each NOD and adjudicate the issues involved, or otherwise explain the disposition of all issues to which an NOD has been filed.  Several NODs must therefore be discussed below.  

In July 1993, the RO denied service connection for a back disability (see claims files, Vol 1).  The Veteran timely submitted an NOD.  After issuance of a statement of the case (hereinafter: SOC), however, the Veteran did not submit a VA Form 9, Appeal to the Board of Veterans' Appeals, or other correspondence containing the necessary information.  The RO therefore administratively closed the appeal without notice to the Veteran.  38 C.F.R. § 19.32.  

In January 1996, the RO denied multiple service connection claims.  The Veteran submitted a timely NOD to the denial of service connection for fatigue, anxiety, sleep disturbance, muscle and joint aches, and headaches.  The RO issued an SOC in March 1996.  Although the Veteran did not send in a VA Form 9, Appeal to the Board of Veterans' Appeals, in July 1996 he timely submit a signed VA Form 21-4138, Statement In Support Of Claim, containing the necessary information.  Thus, he perfected appeals for service connection for chronic fatigue, sleep disturbance, anxiety, muscle and joint aches, and headaches, claimed as undiagnosed illnesses.  The RO did not forward the appeal to the Board.  Rather, in November 1997, the RO issued a rating decision that granted service connection for an anxiety disorder and a sleep disorder, thus satisfying a portion of that appeal. 

A November 1997 RO decision continued the denial of service connection for fatigue, headaches, and muscle/joint pains, claimed due to undiagnosed illness.  The decision also denied service connection for a gastrointestinal disorder, claimed due to undiagnosed illness.  The Veteran submitted a new NOD, which addressed only the denial of service connection for fatigue.  In January 1998, the RO issued a new SOC discussing service connection for fatigue.  In December 1998, the RO granted service connection for fatigue (see claims files, Vol 2), thus satisfying another portion of the appeal; however, still pending from the appealed January 1996 rating decision were claims for service connection for muscle aches, joint aches, and headaches, due to undiagnosed illness.

The December 1998 RO rating decision assigned an initial 40 percent rating effective from August 1995 for the newly service-connected fatigue.  The Veteran did not appeal that decision.  In a December 1999 rating decision, the RO denied increased ratings for fatigue and for dermatitis.  The Veteran timely submitted an NOD to the rating for fatigue.  The RO issued an SOC in May 2000.  In July 2000, the RO increased the fatigue rating to 60 percent effective July 18, 1999.  The RO then granted service connection for joint aches and combined this disability with the fatigue disability.  The RO also increased the rating for anxiety with a sleep disorder to 30 percent effective from February 18, 2000.  Because the Veteran did not submit a VA Form 9, Appeal to the Board of Veterans' Appeals, or other correspondence containing the necessary information, the RO closed the appeal for an increased rating for fatigue.  Because the July 2000 decision added joint aches to the service-connected fatigue disability, the only claims that remain pending from the appealed January 1996 rating decision are service connection for muscle aches and headaches, claimed due to undiagnosed illnesses.  These issues have been added to page 1 of this decision to reflect the Board's jurisdiction.

In August 2005, the RO denied service connection for post-traumatic stress disorder (PTSD).  The Veteran submitted a timely NOD.  The RO issued an SOC in December 2005.  Although the Veteran did not submit a VA Form 9, Appeal to the Board of Veterans' Appeals, or other correspondence containing the necessary information, in February 2007 the RO granted service connection for PTSD effective from May 2005.  Thus, the issue to which the NOD pertains was resolved.  An initial 50 percent rating was assigned.  The Veteran did not appeal for a higher rating or earlier effective date.  

All NODs submitted prior to a May 2007 rating decision, and the disposition of those issues, have been discussed above.  

This appeal also arises from May 2007 and later-issued RO rating decisions.  In pertinent part of a May 2007 rating decision, the RO denied service connection for multiple-claimed disorders, including sleep apnea (see claims files, Vol 3).  The Veteran submitted a timely NOD to multiple issues in that decision.  In November 2007, he withdrew his NOD with respect to service connection for bilateral hearing loss, hypertension, and sleep apnea, but continued an appeal for service connection for tinnitus.  In November 2007, the RO granted service connection for tinnitus, thus resolving that issue. 

Regarding the November 2007 withdrawal of an NOD with the denial of service connection for several disabilities, in February 2008, the Veteran submitted a new NOD with the denial of service connection for sleep apnea.   He also requested an increased rating for PTSD, chronic fatigue, and chronic obesity.  The new NOD was timely, as the one-year appeal period following denial of service connection for sleep apnea in May 2007 had not yet lapsed.  See 38 C.F.R. § 20.204 (c).  The RO also treated the February 2008 letter as a request for service connection for obesity.  

The current appeal also arises from a June 2008 RO rating decision that denied service connection for obesity and sleep apnea and denied an increased rating for PTSD.  In a May 2010 rating decision, the RO granted a temporary total rating for PTSD.  The temporary total rating was in effect from April 28 through May 31, 2009.  Thereafter, a 50 percent schedular rating was re-assigned (see claims files, Vol 5).  In a September 2010 rating decision, the RO assigned a 70 percent schedular rating for PTSD effective from July 29, 2010.  The Veteran has continued his appeal for a higher schedular rating for PTSD.  The claim for an increased PTSD rating is characterized on page 1 to reflect the staged rating and temporary total rating assigned during the appeal period.

The RO issued its most recent supplemental statement of the case in October 2010 (see claims files, Vol 6).  In January 2011, the Veteran submitted new evidence along with a waiver of his right to initial RO consideration.  Thus, a remand will not be necessary for this procedural safeguard.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  In March 2011, the Veteran submitted additional new evidence.  Although no waiver was received with this more recent new evidence, the Board will consider it in the first instance, as the outcome is favorable to the Veteran.  

In March 2011, the Veteran withdrew his appeal for service connection for obesity.  The Board therefore lacks jurisdiction to address that claim. 

In April 2009, the Veteran withdrew his request for a hearing before an RO hearing officer and in March 2011, the Veteran withdrew his request for a hearing before a Veteran's law judge.

Service connection for muscle aches and headaches, claimed due to undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Competent, but controversial, medical evidence tending to link sleep apnea to service-connected PTSD, has been submitted.

2.  Throughout the entire appeal period (except for the period from April 28 through May 31, 2009, in which a temporary total rating has already been assigned), PTSD and associated anxiety, depression, and sleep disturbance have been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to suicidal ideation; near-continuous depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  

3.  Not shown at any time during the appeal period (except for the temporary total rating period) are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.  


CONCLUSIONS OF LAW

1.  The requirements for service connection for sleep apnea, secondary to service-connected PTSD with moderate/severe depression and previously undiagnosed illness with symptom of anxiety and sleep disturbance, are met.  38 U.S.C.A. §§ 1110, 1137, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011).

2.  Throughout the appeal period (except for the temporary total rating period), the criteria for a 70 percent schedular rating for PTSD with moderate/severe depression and previously undiagnosed illness with symptom of anxiety and sleep disturbance are met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2011).

3.  Except for the temporary total rating period, the criteria for a 100 percent schedular rating for PTSD with moderate/severe depression and previously undiagnosed illness with symptom of anxiety and sleep disturbance are not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA must notify and assist claimants in substantiating claims for benefits.  38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).  Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, adequate notice was provided in a September 2006 notice letter  This notice includes any additional notice requirement required by in the Court, as explained in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  
VA also has a duty to assist the claimant in the development of the claim.  This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained VA and private clinical records.  The claimant was afforded VA medical examinations.  Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained.  Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).

Service Connection for Sleep Apnea

Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime).  38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2011).  

Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships."  Caluza, 7 Vet. App. at 509.  

Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence.  38 C.F.R. § 3.303(a).

"Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein.  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case.  More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b).  The Veteran has earned the Combat Infantryman Badge.  Thus, his service connection claim must be accorded any consideration set forth at 38 U.S.C.A. § 1154(b). 

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  38 C.F.R. § 3.310 was amended effective October 10, 2006.  The revised § 3.310(b) provides the following: 

  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

Because the sleep apnea claim was received at the RO in February 2007, after the regulatory change became effective, the Board will consider the revised version of 38 C.F.R. § 3.310.

With respect to direct service connection for sleep apnea, the Veteran's Service Treatment Reports (STRs) do not mention sleep apnea.  The Veteran has not alleged that sleep apnea began during active service.  Rather, he has claimed secondary service connection.  

In his February 2007 claim for service connection, the Veteran expressed a belief that sleep apnea was related to service-connected chronic fatigue syndrome and to service-connected PTSD (see claims files, Vol 2).  He reported that he used a CPAP (continuous positive airway pressure) apparatus for sleep apnea.  He also reported that his medical treatment provider has related sleep apnea to all of his service-connected disabilities.  Because he seeks secondary service connection for sleep apnea, it should be noted that the most recent, July 2011-dated, RO rating decision code sheet reflects that service connection is in effect for: 

POST TRAUMATIC STRESS DISORDER WITH MILD-MODERATE, WITH MODERATE/SEVERE SECONDARY MAJOR DEPRESSION WITH PREVIOUSLY UNDIAGNOSED ILLNESS WITH SYMPTOMS OF ANXIETY AND SLEEP DISTURBANCE. [PTSD/Other/Unknown-PTSD];

UNDIAGNOSED ILLNESS WITH SYMPTOMS OF FATIGUE, FEVER AND JOINT ACHES;

UNDIAGNOSED ILLNESS WITH SYMPTOMS OF ANXIETY AND SLEEP DISORDER;

TINNITUS; and, 

DERMATITIS

According to a February 2007 VA sleep study consultation, the impression was obstructive sleep apnea (see claims files, Vol 3).  According to the examiner, "Obstructive sleep apnea is not caused by or a result of a service-connected undiagnosed illness with symptoms of fatigue, fever, and joint aches (chronic fatigue syndrome)."  The rationale was that (1) obstructive sleep apnea is most likely related to obesity; (2) chronic fatigue syndrome is not known to cause obesity; and, (3) the Veteran is a smoker, which is likely to be partially responsible for his sleep apnea.  

In March 2009, a VA pulmonologist and professor of medicine at the University of Minnesota, and who had been treating the Veteran for two years, reviewed the medical history and concluded that the Veteran's obesity was related to obstructive sleep apnea, but his smoking was not related (see claims files, Vol 4).  

In March 2009, a VA staff psychiatrist reviewed the above-mentioned March 2009 pulmonology opinion, reviewed the medical history, and met with the Veteran.  The psychiatrist also noted that she/he had previously seen the Veteran in 2006.  The psychiatrist noted that the Veteran has service-connected PTSD and anxiety and has been treated with numerous anti-depressants for anxiety and depression.  The psychiatrist had this to say:

      My conclusion is that it is likely that the veteran's anxiety, which is well documented going back to at least 2000 - and later attributed to SC PTSD, and its treatment with anti depressants, contributed in a significant way to his weight gain.  It is well known that antidepressants have an associated risk of weight gain.

In a June 2009-dated addendum, the VA psychiatrist added that anti-depressants can cause a change in weight because they improve the patient's mood, which can lead to a better appetite.

The Board interjects its observation that although the above medical opinions do not link sleep apnea directly to service-connected PTSD, these opinions do tend to link medications for service-connected anxiety and PTSD to weight gain and then link that weight gain to sleep apnea.  

In November 2009, the Veteran again asserted that sleep apnea was related to his PTSD and chronic fatigue syndrome, which prevented him from losing weight, thereby causing sleep apnea.  

An April 2010 VA PTSD compensation examination report, authored by a clinical psychologist, mentions:

     Vet is claiming service connection for sleep apnea secondary to his service-connected PTSD.  This is a medical issue and therefore will be deferred to an examining physician.  However, this examiner is unaware of any psychological research literature providing evidence for a causal relationship between PTSD and sleep apnea.  Typically, sleep apnea is often a result of obesity (of which the veteran has a history).  Moreover, vet has a hx of smoking, which is also a known risk factor for sleep apnea.

An April 2010 VA respiratory diseases compensation examination report notes that the Veteran has been treated with antidepressants since 1996 and then notes that some medications can cause weight gain (see claims files, Vol 5).  The physician explained that obstructive sleep apnea happens because muscles of the throat relax, resulting in a narrowing or actual closing of the throat.  Risk factors for sleep apnea include: nasal obstruction; large tong [sic] [tongue?]; shape of palate and jaw; large tonsils or adenoids; narrow airway; nasal obstruction; and, obesity.  Regarding the etiology of the Veteran's obstructive sleep apnea, the physician stated, "I cannot resolve this issue without resorting to mere speculation."  

In January 2011, the Veteran submitted a medical article that links sleep disturbances to PTSD.  The article does not, however, mention a cause for sleep apnea.  Another article submitted in January 2011 links lack of sleep to excess body weight.  The article states, "Mounting evidence suggests that lack of sleep has multiple effects that can all result in excess weight."  

Most recently, in March 2011, private clinical psychologist, J. Tuorila, evaluated the Veteran and then had this to say:

           The following is my opinion regarding [the Veteran's] case.
Psychiatric literature and medical evidence clearly has established the link between PTSD and obstructive sleep apnea primarily as a result of unintended weight gain.  Medication for anxiety/depression, lack of sleep, and high levels of stress in veterans with PTSD frequently cause weight gain and other health problems.

It is my opinion that after a review of additional expert medical opinions and literature that is more likely than not that [the Veteran's] obstructive sleep apnea is at least partially but likely more related to his PTSD symptoms from his combat experiences in the Gulf War.
Thank you for allowing me the opportunity to address this issue that is now more often being recognized in veterans with PTSD. 

Thus, a medical controversy exists as to whether there is a reasonable likelihood that PTSD has caused the Veteran's obstructive sleep apnea.  The February 2007 VA consultation report and the April 2010 VA PTSD examination report tend to dissociate PTSD from obstructive sleep apnea (although an alternate link to PTSD, via obesity, lurks in those reports) while a March 2011 private report clearly associates PTSD with obstructive sleep apnea.  An April 2010 VA respiratory disease examination report could be viewed as slightly favorable in that the physician declined to offer an opinion on the basis that it would be merely speculative.  Thus, that physician tacitly admits that there is insufficient evidence to offer a negative opinion.

The Board finds the all of the above-mentioned medical opinions to be based on accurate facts and supported by a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value).  Thus, they must be accorded weight.  

The medical treatise articles mentioned above link sleep disturbances to PTSD, but they do not mention obstructive sleep apnea.  Indeed, the RO has already granted service connection for a "sleep disturbance" associated with PTSD and for a "sleep disorder" associated with an undiagnosed illness.  Because the medical articles do not address the etiology of obstructive sleep apnea, the medical articles are therefore not so significant as to warrant further consideration. 

The Board must address the competency, credibility, and probative value of the lay evidence.  38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity.  Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency.  38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional).  In this case, the lay assertions support a later diagnosis by a medical professional.  Thus, the lay assertions must be afforded weight. 

After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise.  The benefit of the doubt doctrine will therefore be applied.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  Service connection for sleep apnea, secondary to PTSD, must be granted.

Disability Ratings

Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2011).  Diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  The entire medical history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  38 C.F.R. § 4.2.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  

Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities.  A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity."  38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007).

If a Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then a total rating based on individual unemployability (TDIU) as a result of that disability must be considered.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

The United States Court of Appeals for Veterans Claims (Court) held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  

PTSD has been rated 50 percent prior to April 28, 2009, 100 percent from then through May 31, 2009, 50 percent from June 1, 2009, through July 28, 2010, and 70 percent on July 29, 2010.  The Board must determine whether there is a basis to assign a schedular rating greater than 50 percent for the earliest portion of the period and a rating greater than 70 percent for the portion of the appeal period beginning on July 29, 2010.  The period from April 28, 2009, through May 31, 2009, need not be discussed, as the maximum rating has already been assigned during that period.

The Veteran requested service connection for PTSD in May 2005 (see claims files, Vol 2).  The earlier-dated clinical records reflect that in December 2005, PTSD was not found and the RO assigned a Global Assessment of Functioning (hereinafter GAF) score of 75; however, in December 2006, when PTSD was found, the GAF score was only 60.  Although PTSD was mild to moderate, his depression (secondary to PTSD) was moderate to severe.  According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (hereinafter referred to as DSM-IV), a GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers).  A GAF score of 61 to 70 is indicative of some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well.  A score of 71 to 80 is indicative of transient, if any, symptoms that are expectable reactions to psychosocial stressors resulting in no more than slight impairment in social, occupational, or school functioning, i.e., temporarily falling behind in schoolwork.  See 38 C.F.R. § 4.125 (2011)]. 

The December 2006 VA PTSD examination report mentioned above notes that the Veteran denied psychotic symptoms.  His thought processes were logical and sequential.  His speech and memory were normal.  He denied suicidal and homicidal ideation.  He did show increased arousal, sleep disturbance, and irritability.  The report notes that the Veteran worked a night shift and therefore tried to sleep during the day.  The examiner noted that this examination report contrasted with previous mental examination reports that showed only an anxiety disorder.  

As noted in the introduction, in February 2007, the RO granted service connection for PTSD and assigned a 50 percent rating.  The Veteran requested an increased PTSD rating in February 2008 (see claims files, Vol 3).  

An April 2008 VA PTSD compensation examination report reflects that the Veteran reported "occasional" suicidal ideation.  Although married, the Veteran reported that he had no friends and tended to isolate himself.  He had punched a hole in a wall at home due to anger.  His affect was constricted and his mood was anxious and depressed.  He had paranoid ideation (he felt that people were talking about him) and delusions of love (the examiner did not further explain this).  He had insight and judgment, but the examiner did comment on the adequacy thereof.  He did not interpret a proverb appropriately.  The examiner found that PTSD interfered with the activities of daily living.  His recent memory was mildly impaired.  He displayed irritability, difficulty concentrating, and exaggerated startle response.  His social interaction was poor.  The Axis I diagnosis was PTSD, moderate, with secondary depression.  A GAF score of 60 was assigned.  His symptoms did not cause total occupational impairment, but they did result in deficiencies in thinking, family relations, work, and mood. 

An August 2008 VA suicide assessment notes that the Veteran had suicidal ideation, but no intent to follow through (see claims files, Vol 4).

In a September 2008 letter to VA, the Veteran's spouse reported that about a year earlier he had attacked her and that the police had been called in.  She and the children left home temporarily.  In another incident, the Veteran had almost killed another man.  He also had a drunken driving conviction.

A March 2009 VA clinical report mentions that the Veteran was not living with his spouse and children because of stress.  

An April 2009 VA social work assessment indicates that the Veteran had been hitting, slapping, punching, and choking his wife in front of their three children.  Because of that behavior, they had been separated 3 months at that point in time.  

In April 2009, the Veteran's spouse reported that the Veteran could not remember to take his medications.  In April 2009, the Veteran's daughter wrote about her father's tantrums.  

On April 15, 2009, a GAF score of 45 was assigned.  A GAF score of 41 through 50 or lower is indicative of serious symptoms, or serious difficulty in social, occupational, or school functioning, i.e., no friends, unable to keep a job.  See 38 C.F.R. § 4.125 (2011).  

The Veteran was then scheduled for an inpatient VA PTSD treatment program, which began on April 29, 2009.  During this hospitalization, a temporary total rating was assigned.  The temporary total rating ended on May 31, 2009.  

VA examined the Veteran for PTSD in April 2010 (see claims files, Vol 5).  The report notes that the Veteran remained separated from his spouse and had recently put another hole in a wall due to anger.  He continued to work at his job as an overnight stocker at Wal-Mart(r).  He had lost 5 weeks of work during the recent 12 months due to PTSD.  He displayed homicidal thoughts in that he thought of killing coworkers who taunted him.  He had recently had a verbal confrontation with a coworker.  He had poor impulse control.  He did maintain at least minimum hygiene.  He had mild memory problems.  He was unable to have loving feelings.  He also had irritability and hypervigilance.  The examiner also felt that the Veteran had limited insight into his problems and felt hopeless and helpless.  The examiner assigned a GAF score of 60 and noted that the Veteran's PTSD appeared to be unchanged since last examined by this examiner in April 2008.  

The Veteran was examined privately on July 29, 2010, by a private clinical psychologist at Central Minnesota Counseling Center, Inc.  The examiner noted daily distressing intrusive thoughts.  The Veteran was extremely hypervigilant and had exaggerated startle response.  He reported memory problems.  He had chronic intense irritability periods.  PTSD negatively affected work and family relationships.  He had taken about 6 months off from work in the recent year, due to PTSD.  He reported two or three panic attacks per week.  His judgment was poor.  The examiner assigned three Axis I diagnoses: PTSD; major depressive disorder, moderate to severe secondary to PTSD; and, panic disorder, without agoraphobia.  The examiner assigned a GAF score of 45.  

Omitting the period of a temporary total rating from this analysis, the RO has rated PTSD 50 percent disabling prior to July 29, 2010, and 70 percent on July 29, 2010, under Diagnostic Code 9411.  Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2011), PTSD will be evaluated in accordance with the General Rating Formula for Mental Disorders.  Under that formula, a 50 percent evaluation is warranted for 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; difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent evaluation is warranted for PTSD for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.  

The facts discussed above disclose that PTSD and associated anxiety, depression, and sleep disturbance have been manifested throughout the appeal period (except for the temporary total rating period) by occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; near-continuous depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  Comparing these manifestations with the criteria of the rating schedule, the Board concludes that the criteria for a schedular 70 percent rating are more nearly approximated.  

As a rationale for the above conclusion, it must be noted that the RO has already assigned a 70 percent rating, but only from July 29, 2010, which appears to commence on the day of the most recent VA examination.  Although the July 29, 2010, examination report contains a GAF score of 45, that score was also assigned in April 2009, during an earlier portion of the appeal period and prior to the temporary total rating period.  Moreover, other 70 percent criteria are shown prior to the temporary total rating period.  For instance, near continuous depression was shown.  In fact, the service-connected PTSD has been characterized in VA rating decisions throughout the appeal period as PTSD with moderate/severe secondary depression.  Thus, the Board finds that near-continuous severe depression throughout the appeal period is shown.  

Suicidal ideation was noted in an April 2008 VA examination report.  The Veteran also displayed paranoia and delusions.  He was irritable and had poor social interaction.  The examiner found deficiencies in thinking, family relations, work, and mood.  These manifestations fit into the listed criteria for a 70 percent rating.  An April 2010 VA examination report specifically mentions homicidal ideation as well as other manifestations that warrant a 70 percent rating.  The April 2010 report also notes that the Veteran's PTSD appeared unchanged from that shown in April 2008.  Thus, it is clear that the criteria for a 70 percent schedular rating are more nearly approximated during earlier portions of the appeal period.  

The July 29, 2010, private examination report supports a 70 percent rating, but no higher.  It mentions that the Veteran had lost 6 months of work in the recent year due to PTSD.  He had chronic intense irritability periods.  He reported two or three panic attacks per week.  The assigned GAF score of 45 agrees with the GAF score assigned in April 2009 and argues for a 70 percent rating.   

The criteria for a 100 percent schedular rating for PTSD and associated anxiety, depression, and sleep disturbance are not met at any time during the appeal period (except for the temporary total rating period).  The salient fact for this finding is that the Veteran remained gainfully employed during the entire appeal period.  Not shown are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which PTSD and associated anxiety, depression, and sleep disturbance exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal.  The assignment of staged ratings is therefore unnecessary.  Hart, supra.  

For the period prior to July 29, 2010 (except for the temporary total rating period), the evidence favors an increased, 70 percent, schedular rating for PTSD and associated anxiety, depression, and sleep disturbance.  However, after considering all the evidence of record, for the period commencing on July 29, 2010, the preponderance of the evidence is against the claim for a rating greater than 70 percent.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  

Extraschedular Consideration

The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned.  Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration.  Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  

The Court added a three-part test for triggering extra-schedular ratings in Thun v. Peake, 22 Vet. App. 111 (2008).  Moreover, in Thun v Shinseki, 572 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted.  The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  

Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the record does not reasonably raise the question of unemployability, nor has the claimant raised this issue.  

PTSD and associated anxiety, depression, and sleep disturbance have not been shown, or alleged, to cause such difficulties as marked interference with employment or to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards.  In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1).  See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227.  See also VAOPGCPREC. 6-96. 


ORDER

Service connection for sleep apnea, secondary to PTSD, is granted.

For that portion of the appeal period prior to July 29, 2010 (except for the temporary total rating period), a 70 percent rating for PTSD and associated anxiety, depression, and sleep disturbance, is granted, subject to the laws and regulations governing payment of monetary benefits.

For that portion of the appeal period commencing on July 29, 2010, a rating greater than 70 percent for PTSD and associated anxiety, depression, and sleep disturbance, is denied.


REMAND

As explained in the introduction, the Veteran timely appealed a January 1996 rating decision that, in pertinent part, denied service connection for muscle aches and headaches, claimed due to undiagnosed illnesses.  These claims have not been withdrawn by the Veteran and have not been addressed by the RO since November 1997.  Much new evidence has been received since issuance of an SOC in March 1996.  The Veteran has not waived his right to initial RO review of most of this new evidence.  

The AMC or RO must therefore consider all of the evidence submitted since issuance of the SOC in March 1996, develop, as necessary, the claims for service connection for muscle aches and headaches claimed due to undiagnosed illnesses, and then re-adjudicate these claims.  

Accordingly, the case is REMANDED for the following action:

1.  The AMC or RO must review the claims files and ensure that all notice obligations have been satisfied with respect to the pending undiagnosed illness claims.  

2.  The AMC or RO must consider all of the evidence submitted since issuance of the March 1996 SOC that discussed service connection for muscle aches and headaches claimed due to undiagnosed illnesses, and then re-adjudicate these claims.  

3.  After accomplishing the above, if the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. 

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for examination, without good cause, if an examination is scheduled, may have adverse consequences on his claims.  38 C.F.R. § 3.655 (2011).  The Veteran may submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court, for additional development or other appropriate action, must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs