Citation Nr: 1312908 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-45 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to service connection for sleep apnea, to include as due to posttraumatic stress disorder (PTSD). 2. Entitlement to an initial increased evaluation for PTSD, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: James Fausone, Esquire ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1966 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2009 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to a TDIU has been reasonably raised by the Veteran's statements, and has been added on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to service connection for sleep apnea and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO for additional development. FINDING OF FACT The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity. The Veteran's symptom are not consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, nor are his symptoms productive of total occupational and social impairment. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 50 percent rating, but no higher, for PTSD are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). A May 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter/also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a September 2010 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records, have been obtained; he did not identify any private records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in August 2009; the examination is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examination report reflects that the claims file was reviewed, the Veteran was examined, and pertinent clinical findings were recorded. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating, evaluation of the medical evidence since the award of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks an evaluation in excess of 30 percent for PTSD. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 30 percent disability rating is warranted where 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 and mild memory loss (such as forgetting names, directions, recent events), is demonstrated. A 50 percent disability rating is assigned where 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, is demonstrated. An 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); and an inability to establish and maintain effective relationships, warrants a 70 percent rating. A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2012). The Global Assessment of Functioning (GAF) is a scale which reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In relevant part, a GAF score of 70 to 61 reflects some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (E.G. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.) A score of 60 to 51 is defined as 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). Factual Background and Analysis In an August 2008 VA medical center treatment note, the Veteran reported that over the past six months he had experienced flashbacks, nightmares, intrusive images of dead bodies, sleep impairment, anxiety, depression, irritability, and isolation. The Veteran reported that he was separated from his wife and that he had lost his mother the year prior. He stated that he had a hard time adjusting after these events. The Veteran denied any current suicidal or homicidal ideation. The Veteran described difficulty coping with anger and homicidal thoughts towards his wife's uncle during treatment in September 2008. He said that he had had nightmares for several years. In an October 2008 VA medical center mental health treatment note, the Veteran described nightmares and reported that he had a short fuse and had become physical with a co-worker. He described being depressed with crying spells. He had no suicidal thoughts but had paranoid feelings and hypervigilance. He described checking his doors several times before going to bed as well as problems in crowds. A diagnosis of PTSD and a GAF score of 65 were assigned. A June 2009 treatment note reported that the Veteran denied suicidal or homicidal ideation and isolated himself from people who made him angry. He described intermittent anxiety. In August 2009, the Veteran was afforded a PTSD VA examination. During his examination, the Veteran explained that he had been divorced once and was separated from his wife. He explained that he lived with his brother and belonged to a Corvette club and attended church. Psychiatric examination demonstrated that the Veteran was neatly groomed and tense. Speech was unremarkable and affect was constricted; the Veteran's mood was described as anxious and depressed. On mental status examination, orientation to time place and person was intact. There were no delusions and judgment was normal. There was paranoid ideation and sleep impairment described. Obsessive/ritualistic behaviors were described, the Veteran stated that every time he got up at night he checked his locks and looked outside. There were no panic attacks or homicidal or suicidal thoughts, although the Veteran did describe being very angry at his wife and wanting to get back at her for leaving. Impulse control was good and there were no episodes of violence. There was mildly impaired memory reported. The Veteran described efforts to avoid thoughts and conversations about his stressor and described irritability, difficulty concentrating, and hypervigilance. He stated that he was not employed and that he believed it was harder for him to get along in a job situation due to his short temper. The examiner provided a GAF score of 55, citing difficulties in marriage, social relationships, occupational functioning, and a short temper. The examiner stated that the Veteran's symptoms demonstrated an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks, but generally satisfactory functioning. In an October 2009 statement, the Veteran explained that he could no longer stand to be around others and became angry and upset when he was told what to do. A November 2009 mental health medication note described the Veteran's sleep impairment with nightmares as well as flashbacks. The Veteran stated that he did not go a single day without thinking about Vietnam. In a May 2010 statement, the Veteran explained that he believed his symptoms were more severe than his 30 percent disability rating reflected. He explained that he left work in 2007 because he was having problems getting along with his co-workers. He stated that in 2008 he began to have problems with his wife, who eventually left him. He stated that her uncle had interfered with their affairs and he threatened to shoot both of them and began to drink heavily to deal with his symptoms. He described flashbacks of his friend being killed and stated that he no longer had any friends. In a September 2010 treatment note, the Veteran explained that he had a lack of interest in activities and stayed home most of the time. He described having a part-time job which lasted only a few weeks because of his inability to deal with others and trouble with his temper. He denied feeling depressed and denied suicidal or homicidal thoughts. The record demonstrates symptoms to include irritability, anxiety, avoidance, thoughts of violence, isolation, paranoia, and disrupted sleep. Additionally, the evidence demonstrates that the Veteran has some difficulty with occupational and social relationships with others. The Board finds that, given the totality of his symptoms, and affording the Veteran the benefit of the doubt, a 50 percent disability rating most closely approximates his PTSD symptoms. Much of the Veteran's symptoms are described in the lower, 30 percent disability criteria and the Veteran's VA examiner, significantly, describes the Veteran's symptoms as resulting in occupational and physical impairment with occasional decrease in work efficiency, the criteria for a 30 percent disability rating. However, giving the Veteran the benefit of the doubt, and taking into consideration his own accounts of his irritability and thoughts of violence, a higher, 50 percent rating is warranted. The Board finds, however, that the evidence of record does not demonstrate the occupational and social impairment with deficiencies in most areas consistent with the higher, 70 percent, disability rating or total occupational and social impairment described in the 100 percent rating criteria. The Veteran is shown to have some difficulty with relationships but is not shown to be unable to establish and maintain effective relationships; his examination report reflects that he had maintained good relationships with some family members and involved in clubs and church. Further, while depression and anxiety are reported by the Veteran, the evidence does not suggest symptoms to the level of near-continuous panic or depression that affect his ability to function independently or appropriately, as described in the criteria for a 70 percent disability evaluation. Additionally, although he reported some passive homicidal thoughts pertaining to his ex-wife and her uncle, he indicated that he did not act on those thoughts. The Veteran has the ability to control his anger impulses to avoid violence. There is a single described episode of violence at work but, overall, the evidence has not demonstrated, and no medical professional has indicated, that his impulse control or judgment were impaired. As noted, on examination, the Veteran's impulse control was good and no episodes of violence were noted. Moreover, he has not been shown to neglect appearance or hygiene, nor has spatial disorientation or trouble with speech been shown. Although the Veteran indicated that he had obsessive and ritualistic behavior, as he checked locks and looked outside at night, the objective evidence of record does not show that the Veteran's behavior is so severe as to significantly interfere with routine activities such that a rating in excess of 50 percent is warranted. The Board notes that the Veteran has demonstrated some symptoms described in the higher 70 percent rating criteria, and acknowledges that not all criteria need be shown in order to establish a higher rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, however, the Board finds that the Veteran's symptomatology more nearly approximates the 50 percent disability criteria. The Board has considered both the Veteran's assertions and the competent medical evidence in so finding. Finally, the Veteran was assigned has received GAF scores of 55 and 65. As noted above, a GAF score between 51 and 60 reflects 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) and a score between 61 and 70 describes some mild symptoms. Here, the Veteran's GAF scores are consistent with the symptoms as shown by the record and support the assignment of a 50 percent rating. In sum, based upon the clinical evidence, lay statements and VA examination reports, the Board finds that since service connection has been in effect the Veteran's symptoms most closely approximate the criteria in the 50 percent disability rating. The implementation of staged ratings in this case is not appropriate. Consideration has been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. The schedular evaluation in this case is adequate. As demonstrated above, after resolving doubt in the Veteran's favor, his PTSD symptoms are contemplated by the currently assigned 50 percent rating. While ratings in excess of that assigned are provided for greater degrees of impairment, the competent evidence reflects that a higher rating is not warranted in this case. The Veteran's PTSD symptoms are not productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, or total occupational and social impairment. As the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-PTSD, no exceptional or unusual disability picture is shown. Consideration of other factors (such as marked interference with employment or frequent periods of hospitalization) is not necessary. ORDER An initial rating of 50 percent for PTSD is granted, subject to the provisions governing the award of monetary benefits. REMAND In April 2011, the Veteran was afforded a VA examination in order to determine whether the Veteran's sleep apnea was related to service or, alternatively, to his service-connected PTSD. The examiner concluded that he would not be able to make a determination on this issue without resorting to speculation. Thereafter, in May 2011, a physician's assistant opined that the Veteran's sleep apnea was not caused by, a result of or aggravated by PTSD. The examiner stated that there was no medical literature that suggested a connection between the two disorders. Significantly, the examination reports do not reflect that either the April or the May 2011 examiner reviewed the Veteran's claims file, including two articles submitted by the Veteran which directly address the possibility of a relationship between PTSD and sleep disorders. The examinations are found to be inadequate as the examiners were not fully informed by the evidence of record. Once VA has provided a VA examination, it is required to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). If, as here, a VA examination is inadequate, the Board's only recourse is to remand the case. Thus, the Board finds that a new VA examination is required before the Veteran's claim may be adjudicated on the merits. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) (West 2002) and 38 C.F.R. § 3.159(c)(4) (2012). In addition, the Veteran has indicated that his service-connected disabilities render him unable to maintain substantial employment. Presently, the Veteran's disability ratings do not meet the rating requirements for TDIU on a schedular basis. 38 C.F.R. § 4.16(a). However, following remand, the RO's determination on the issue of entitlement to service connection for sleep apnea may have a bearing on the TDIU claim. The currently assigned disability rating of 50 percent for the Veteran's PTSD should also be considered. 38 C.F.R. §§ 3.340 , 3.341, 4.15, 4.16, 4.18 and 4.19. The appropriate disposition in this circumstance, then, is to also remand the issue of entitlement to TDIU as the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA or non-VA healthcare provider who treated him for his sleep apnea. After securing any necessary authorization from him, obtain all identified treatment records that have not already been associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. Notify the Veteran of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. 2. After obtaining any outstanding treatment records, schedule the Veteran for a VA examination in order to address the nature and etiology of his sleep apnea. The Veteran's claims file, to include articles submitted by the Veteran which address the relationship between PTSD and sleep apnea must be provided to and reviewed by the VA examiner prior to the examination. The examiner is asked to address whether it is at least as likely as not (at least a 50 percent probability) sleep apnea was incurred in service. If not, the examiner is asked to provide an opinion as to following question: is it at least as likely as not (at least a 50 percent probability) that sleep apnea was proximately caused, or aggravated (i.e., permanently worsened) beyond its natural progress, by service-connected disorder PTSD? If aggravation (i.e., permanent worsening) is found, to the extent possible, the examiner should identify the clinical signs, symptoms and manifestations of any such disorder which establish: (1) the degree of severity before the onset of aggravation (permanent worsening) of sleep apnea; and (2) the degree of severity at the onset of aggravation (permanent worsening) of this condition. The rationale for any opinion offered should be provided. 3. After the requested examination has been completed, the report should be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, it should be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 4. After completing any additional development deemed necessary to adjudicate the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities or service connection for sleep apnea, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs