Citation Nr: 1538356 Decision Date: 09/09/15 Archive Date: 09/18/15 DOCKET NO. 10-34 545 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Whether there is clear and unmistakable error in a June 2007 rating decision that assigned an initial 30 percent disability rating for posttraumatic stress disorder (PTSD) with sleep disorder. 3. Entitlement to an increased rating for service-connected PTSD, evaluated as 30 percent disabling prior to and following the period from May 17, 2010 to January 1, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 2001 to March 2006. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the RO in Cleveland, Ohio, that in pertinent part, denied service connection for sleep apnea, determined that there was no CUE in a prior rating decision that assigned an initial 30 percent rating for PTSD with sleep disorder, and denied an increase in a 30 percent rating for PTSD with sleep disorder. Jurisdiction of the case was subsequently transferred to the RO in Indianapolis, Indiana. The Board notes that during the pendency of this appeal, the RO assigned a temporary total rating for PTSD with sleep disorder, effective from May 17, 2010, based on hospitalization under 38 C.F.R. § 4.29. The rating was subsequently reduced to 30 percent effective January 1, 2012 in an October 2011 rating decision. A videoconference hearing was held in May 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. The issues of service connection for sleep apnea and entitlement to an increased rating for service-connected PTSD with sleep disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a June 2007 rating decision, the RO assigned an initial 30 percent rating for the award of service connection for PTSD with sleep disorder; the Veteran was properly notified of that decision and he did not appeal it. 2. Based on the evidence then of record and the statutes and regulations then in effect, the June 2007 rating decision that assigned an initial 30 percent rating disability rating for the award of service connection for PTSD with sleep disorder was undebatably erroneous in failing to apply 38 C.F.R. § 4.129 (2006) to assign the initial 50 percent rating required under the regulation for the grant of service connection for PTSD with sleep disorder. CONCLUSIONS OF LAW 1. The June 2007 rating decision that assigned an initial disability rating of 30 percent, for the grant of service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2015); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2015). 2. The June 2007 rating decision that assigned an initial disability rating of 30 percent, for the grant of service connection for PTSD contains CUE, and as such, is herein revised to assign an initial disability rating of 50 percent, for the original grant of service connection for PTSD. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.105(a) (2015); 38 C.F.R. § 4.129 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The regulations governing the duties to notify and assist are not applicable to a claim for review of a prior final RO decision on the basis of CUE. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc) (holding that since CUE requests are not claims for benefits, the VCAA is not applicable); see also Parker v. Principi, 15 Vet. App. 407 (2002); Juarez v. Principi, 16 Vet. App. 518, 521 (2002) (per curiam order) (citing Parker as "holding VCAA inapplicable to claim that RO decision contained CUE"); 38 C.F.R. § 20.1411(c), (d) (2015). At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, a CUE claim is adjudicated based on the record and the law that existed at the time of the prior decision. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the May 2015 Board hearing. Finality of the June 2007 Rating Decision with Respect to the Initial Disability Rating Assigned for Service Connection for PTSD In a June 2007 rating decision, the RO granted service connection and a 30 percent rating for PTSD with sleep disorder, effective March 31, 2006, the day after the Veteran's separation from service. A rating decision becomes final and binding if the appellant does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The appellant was properly notified of the June 2007 rating decision by a letter dated in June 2007, and he did not initiate an appeal of the initial rating assigned for PTSD by submitting a notice of disagreement with the June 2007 rating decision. Nor was any new and material evidence submitted within one year of notice of the June 2007 rating decision under 38 C.F.R. § 3.156(b) (2006) that would have a bearing on the initial rating assigned. Thus, the decision became final. Id. CUE in the Assignment of an Initial Disability Rating of 30 Percent for Service- Connected PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. PTSD is evaluated under the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. Even higher ratings are also available under this Diagnostic Code. The Veteran claims that the June 2007 rating decision granting service connection for PTSD with sleep disorder and assigning an initial evaluation of 30 percent contains CUE. The Veteran asserts that the June 2007 rating decision failed to apply the provisions of 38 C.F.R. § 4.129 (2006) when assigning an initial disability rating for the grant of service connection for PTSD with sleep disorder. The Veteran asserts that he was discharged from service due to his PTSD with sleep disorder, which would require an initial 50 percent evaluation under 38 C.F.R. § 4.129. Previous determinations, which are final and binding, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2015); DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). The United States Court of Appeals for Veterans Claims (Court) has defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The Court also has held that such error must be based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet. App. 310, 314 (1992). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Russell, 3 Vet. App. at 314; see also Yates v. West, 213, F.3d 1372 (2000). As an initial threshold matter, the Board finds that the Veteran has pled this theory of CUE with the required specificity. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (the alleged error(s) of fact or law must be described with some specificity and persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error). In order to prevail in a claim for CUE, all three of the following prongs must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existing at that time were incorrectly applied, (2) an error occurred based on the record and the law that existed at the time of the prior adjudication in question, and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Bouton v. Peake, 23 Vet. App. 70 (2008); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Disagreements as to how facts are weighed do not constitute CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). A misapplication of the regulation governing ratings to be assigned to veterans whose service-connected disabilities are subject to multiple classifications can constitute CUE. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); see 38 C.F.R. § 4.14. The Board notes that, in June 2007, 38 C.F.R. § 4.129 provided: § 4.129 Mental disorders due to traumatic stress. When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted. 38 C.F.R. § 4.129 (2006). The Veteran's service treatment records reflect that on psychiatric examination in late November 2005, he reported that he continued to feel stressed by incidents that occurred during his first tour in Iraq when two friends were killed, and he had continuing nightmares, flashbacks, and startle reaction. He reported suicidal ideation, and said that he was afraid he might harm someone in his present company. On examination, the examiner indicated that he had intermittent suicidal ideation, and diagnosed PTSD, with a Global Assessment of Functioning (GAF) of 55. The examiner indicated that he recommended medication and counseling, but the Veteran refused treatment, and preferred discharge. He recommended that the Veteran receive follow-up care through VA or local mental health providers. He recommended discharge under Chapter 5-17. The same examiner completed a December 2005 report of mental status examination, and stated that the Veteran was having severe nightmares for which he did not want treatment, and this precluded effective military service. He indicated that the Veteran was eligible for discharge under Chapter 5-17. In December 2005, the Veteran's company commander counseled him based on his mental status. He was advised that he had been assessed with an adjustment disorder with mixed disturbance of emotions and conduct, and had no motivation for continued service. He was given a Personality Disorder "overcome period" of 30 days effective from that day until January 2006. After this period, he was told that he would be counseled again. He was advised that if he did not overcome his disorder during this probation period, his separation packet would be submitted in accordance with Army Regulation (AR) 635-200, Chapter 5-13. On VA general medical examination performed in December 2005 during service, the Veteran complained of a mental condition. It was noted that his medical history included PTSD. The Veteran said this started when he was put on Stop Loss and sent to Iraq for a second time. He reportedly had a "breakdown" during "R&R" and could not get back on the airplane and began having severe nightmares after his first deployment to Iraq. He began talking in his sleep, having panic attacks and waking up. He saw a staff psychiatrist in Heidelberg and was being released on a Chapter 5-17. He was told he had PTSD but no medications were discussed. He was told to get help from the VA after discharge. He also reported flashbacks which disrupted his leisure time, particularly when he attempted to nap and it also caused hypervigilance while driving or riding in a vehicle. Mental status examination today was essentially normal. The diagnosis was PTSD claimed, not objectively demonstrated. The examiner ordered a formal psychiatric evaluation. After the 30-day "overcome period", in January 2006, the company commander stated that this time had been granted because he had been assessed by a psychiatrist at Heidelberg Hospital with severe nightmares for which he refused treatment. Currently, the Veteran said he was still having severe nightmares and that still did not want treatment. Because he did not overcome his disorder and because he would not accept treatment, he would submit his separation packet under AR 635-200, Chapter 5-13. In a January 2006 memorandum, the company commander stated that after observing the Veteran for the past 30 days, he had not seen any changes in his mental status, and the Veteran still expressed to him how emotional and disturbing the Army way of life was to him. He concluded that the Veteran had not overcome his mental disorder. A January 2006 memorandum from the Veteran's company commander reflects that the Veteran had been having severe nightmares for which he did not currently want treatment, and his condition precluded effective military service. He stated that it was not feasible or appropriate to accomplish other disposition because his mental condition made him unlikely to be a productive member of the military. He concluded that the Veteran should not be retained in the Army because his untreated mental condition made him unlikely to be a productive member of the military. A March 2006 memorandum from his commanding officer directed that the Veteran was to be separated from service under AR 635-200, Chapter 5, Paragraph 5-17, based on other designated physical/mental conditions. He was to depart immediately and be escorted by a noncommissioned officer. The Veteran's DD Form 214 reflects that he was honorably discharged from service in March 2006 prior to completion of his full term of service. He served in Kuwait/Iraq from January 2004 to January 2005, and from May 2005 to September 2005. The separation authority was AR 635-200, paragraph 5-17, separation code JFV. The narrative reason for separation was a condition, not a disability. AR 635-200, Para 5-17, specifically states that if PTSD, traumatic brain injury (TBI) and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the soldier will not be processed for separation under this paragraph but will be evaluated under the physical disability system in accordance with AR 635-40. In stressor statements received in February 2007, the Veteran described a traumatic incident during service in Southwest Asia in which he was in a truck convoy, and witnessed two fellow soldiers in the convoy killed by an improvised explosive device (IED) attack. He named these soldiers, and this incident was subsequently verified by the RO. He also reported another incident in which he tried to help another soldier injured in a similar attack. The Veteran underwent VA PTSD compensation examination in May 2007, and was diagnosed with PTSD. The examiner opined that the Veteran was exposed to significant trauma involving roadside bombings in Iraq. He reported nightmares as well as distress when exposed to stimuli that reminded him of the traumatic events, and had difficulty with sleep as well as irritability and angry outbursts, among other symptoms. He denied suicidal or homicidal ideation. The GAF was 55, based on moderate difficulty with social and vocational functioning due to PTSD. The examiner indicated that he avoided close relationships and being out in the community, and had significant anxiety when out in the community. He also experienced road rage. Outside of work, he tended to stay home, avoid others, and drink too much. The examiner opined that the Veteran began to have symptoms of PTSD while on R & R from Iraq, and that his PTSD was due to his traumatic experiences in Iraq. After a review of the record that existed at the time of the prior decision, the Board finds that reasonable minds could not differ as to the applicability of 38 C.F.R. § 4.129 (2006) at the time of the June 2007 rating decision. The Board finds that the evidence of record at the time of the prior June 2007 decision undebatably shows that the service department determined that the Veteran was unfit to serve based on a mental disorder. The evidence also undebatably shows that this mental disorder (diagnosed as PTSD during service by a psychiatrist in November 2005) developed in service as a result of a highly stressful event. Since his mental disorder, diagnosed as PTSD due to the above highly stressful events, was severe enough to bring about his release from active military service, it was CUE not to apply 38 C.F.R. § 4.129 in assigning an initial 50 percent rating in the initial grant of service connection for PTSD. In making this determination, the Board highlights that CUE is defined as a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 C.F.R. § 3.105; Fugo v. Brown, 6 Vet. App. 40, 44 (1993); Bouton v. Peake, 23 Vet. App. 70 (2008); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Notably, had the June 2007 rating decision applied 38 C.F.R. § 4.129 (2006), an initial 50 percent rating would have been assigned for PTSD with sleep disorder effective March 31, 2006. Therefore, the Board grants the Veteran's claim of CUE and finds that the June 2007 rating decision must be revised to assign an initial 50 percent rating for PTSD with sleep disorder, effective March 31, 2006. ORDER The June 2007 rating decision contained CUE in its assignment of an initial 30 percent disability rating in the award of service connection for PTSD, and an initial 50 percent rating for PTSD, effective March 31, 2006, is granted. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claims for service connection for sleep apnea and for an increased rating for service-connected PTSD. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Initially, the Board notes that the Veteran has an established service-connected condition of PTSD with sleep disorder. The Veteran contends that in addition to his sleep impairment related to his service-connected PTSD, he also has sleep apnea. With regard to the claim of service connection for sleep apnea, the Veteran contends that he had sleep apnea symptoms beginning in service, and that the symptoms persisted ever since then. See hearing transcript. Alternatively, he contends that his sleep apnea is secondary to service-connected PTSD. He testified that VA has provided him with a C-PAP machine to treat current sleep apnea. His wife testified that he sometimes stopped breathing when he was asleep. The Veteran has not been provided with a VA examination and medical opinion regarding the etiology of his claimed sleep apnea, and the Board finds that a VA examination is required, for the reasons and bases discussed below. A July 2010 VA neurology sleep consult reflects a diagnosis of obstructive sleep apnea (OSA). A July 2010 polysomnography report reflects diagnoses of OSA syndrome, rule out restless legs syndrome (by history), and rule out depression. The Veteran's service treatment records show that in a December 2005 VA examination performed during active service, the Veteran complained of PTSD and a sleep disorder. The examiner diagnosed sleep disorder, etiology uncertain, and recommended that if the sleep problems did not resolve once his PTSD was under better control, that he should go to a VA hospital for a sleep study to ascertain whether or not he has OSA. In light of the medical evidence showing that the Veteran has current OSA, the December 2005 in-service VA examination report showing that the Veteran complained of sleep problems, and the Veteran's credible lay evidence of continuous sleep apnea symptoms since then, there is an indication that the current OSA may be associated with the Veteran's service. As there is insufficient competent medical evidence on file for VA to make a decision on the claim, the Board finds that this case must be remanded to obtain a VA examination and medical opinion as to the etiology of current sleep apnea. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). With regard to the claim for an increased rating for service-connected PTSD with sleep disorder, the Veteran's most recent VA compensation examination performed to evaluate this disorder was performed in April 2012, more than three years ago. The Veteran contends that his psychiatric disorder has worsened. This issue must be remanded for a VA examination to determine the current level of severity of the service-connected PTSD with sleep disorder. 38 U.S.C.A. § 5103A; 38 C.F.R. § 4.2; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Ongoing relevant medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the record shows that the Veteran has reported that he participated in the Vocational Rehabilitation and Employment (VR&E) program. It does not appear that his complete VR&E file is of record, and this should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VR&E file and associate it with his claims file. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. 2. Obtain copies of all additional records of any relevant VA treatment for sleep apnea and any psychiatric disorder (to include PTSD) dated since May 2013 that are not already on file. 3. Arrange for a VA examination to obtain a medical nexus opinion as to the etiology of current sleep apnea. The claims file must be made available to and reviewed by the examiner. The examiner should specifically respond to the following questions: a) What is the likelihood (very likely, as likely as not, or unlikely) that any current sleep apnea is directly related to the Veteran's military service or dates back to his service? The examiner should consider the Veteran's lay statements of continuous sleep apnea symptoms since service separation. (b) What is the likelihood (very likely, as likely as not, or unlikely) the Veteran's already service-connected PTSD caused or is aggravating any current sleep apnea? The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran now has, above and beyond that he had prior to the aggravation. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 4. Schedule an appropriate VA compensation examination to reassess the severity of the Veteran's service-connected PTSD with sleep disorder. The claims file must be made available to and reviewed by the examiner. All necessary tests and studies should be performed. The examiner should take into consideration the hearing testimony of the Veteran and his wife regarding his daily anxiety/panic attacks. The examiner is asked to comment on the level of occupational and social impairment resulting from the Veteran's service-connected PTSD. The examiner should provide a Global Assessment of Functioning score. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The Veteran is hereby advised that failure to report for this examination, without good cause, will have detrimental consequences on his claim for an increased rating. See 38 C.F.R. § 3.655. 5. Then readjudicate these claims in light of all additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration of these claims. 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 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs