Citation Nr: 1704086	
Decision Date: 02/09/17    Archive Date: 02/23/17

DOCKET NO. 04-00 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial disability rating in excess of 50 percent from March 28, 2001, to August 12, 2014, for posttraumatic stress disorder (PTSD), and in excess of 70 percent since August 13, 2014. 

2. Entitlement to service connection for a skin disability. 

3. Entitlement to service connection for a sleep disorder, to include sleep apnea.


REPRESENTATION

Veteran represented by:	Robert V. Chisolm, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Hodzic, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to November 1973. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2002, November 2011, and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In November 2006, the Board reopened the claim of service connection for a skin rash and remanded it to the RO for additional development. The Board again remanded the claim in March 2010. By an April 2012 decision, the Board denied service connection for a skin rash. Thereafter, the Veteran filed a notice of appeal with the Court of Appeals for Veterans Claims (Court). In a joint motion for remand (JMR), which the Court granted in October 2012, the Board's April 2012 decision was vacated. In July 2013, the Board broadened the Veteran's claim for service connection for a skin rash to a claim for service connection for a skin disability and remanded the matter for additional development. In May 2014, the Board also remanded the skin disability and sleep apnea claims. 

The law provides that VA must broadly consider claims and when a Veteran asserts service connection, he does so for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). After reviewing the contentions and evidence, the Board determines  that the issue of entitlement to service connection for sleep apnea should be re-characterized and is more accurately stated as listed on the title page of this decision.

Regarding the procedural history of the increased rating claim for PTSD, the Board granted service connection for this disability in March 2010. By a November 2011 rating decision, the RO implemented the Board's grant of service connection and assigned a 30 percent rating, effective from March 28, 2001. The Veteran appealed the initially-assigned disability rating. In subsequent rating decisions, the Agency of Original Jurisdiction (AOJ) increased the disability rating to 50 percent from March 28, 2001, to August 12, 2014, and to 70 percent since August 13, 2014. In a May 2014 decision, the Board, in pertinent part, denied the Veteran's claim for an increased rating in excess of 50 percent for PTSD. The Veteran appealed the matter to the Court, which granted a January 2015 JMR filed by the parties that vacated that portion of the Board's May 2014 decision, and remanded the issue for re-adjudication. The Board again remanded this matter in September 2015 for additional development. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran testified before a Veterans Law Judge (VLJ) sitting at the RO in St. Petersburg in June 2006 regarding whether new and material evidence was submitted to reopen a claim of service connection for a skin rash. A transcript of the hearing is included in the claims file. The VLJ who presided over the hearing is no longer active with the Board and the claims file does not contain evidence notifying the Veteran that he is entitled to another hearing before a currently-active Member of the Board, if he so desired. However, the Board reopened the claim in November 2006 and, as shown below, service connection is granted by this decision; thus, any error in notice is harmless. 

In a February 2014 substantive appeal (VA Form 9), the Veteran requested a Travel Board hearing for the claim of entitlement to service connection for sleep apnea. However, in a March 2014 statement, the Veteran withdrew this hearing request. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(e) (2016).

In addition to the matters noted above, the Veteran has appealed the initially-assigned disability ratings for his bilateral lower extremity peripheral neuropathy, bilateral upper extremity peripheral neuropathy, and retinitis, and the initially-assigned effective dates for the grant of service connection for bilateral upper extremity peripheral neuropathy, diabetic retinopathy, and a TDIU. The electronic record indicates that the AOJ is taking action on these issues. Although the matters are within the Board's jurisdiction, they have not been certified for appellate review and the Board will not undertake review of the matters at this time. If the matters are not resolved in the Veteran's favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO's action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2016) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future review of the Veteran's case should consider this electronic record.

The issue of entitlement to service connection for a sleep disorder, to include sleep apnea, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. 


FINDINGS OF FACT

1. After affording the Veteran the benefit of the doubt, his PTSD signs and symptoms have manifest as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood since March 28, 2001; however, these signs and symptoms have not resulted in total occupational and social impairment during the appellate period. 

2. After affording the Veteran the benefit of the doubt, the skin disability his bilateral feet is etiologically related to his military service.


CONCLUSIONS OF LAW

1. The criteria for an initial disability rating of 70 percent, but not higher, for PTSD have been met since March 28, 2001. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.130, DC 9411 (2016).

2. The criteria for service connection for a skin disability have been met. 38 U.S.C.A. § 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). Because the Veteran's skin disability claim is granted by this decision, any error related to the VCAA is harmless for that claim. See id.; see also Shinseki v. Sanders, 556 U.S. 396, 407 and 410 (2009).

The claim for a higher initial rating is a downstream issue, which was initiated by an NOD. The Court has held that once an NOD from a decision establishing service connection and assigning the rating and effective date has been filed the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the claimant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see 38 U.S.C.A. §§ 5104, 7105 (West 2014). Hence, there is no duty to provide additional VCAA notice for the PTSD claim.

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records, including private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, VA and private medical records, and Social Security Administration (SSA) records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2001, September 2012, and August 2014 VA examiners performed in-person psychiatric examinations and provided clear explanations in support of their opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). These VA examinations and opinions are factually informed and responsive to decide the Veteran's increased rating claim.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Increased Rating for PTSD 

The Veteran asserts that his PTSD should be rated higher than the currently-assigned initial disability rating of 50 percent from March 28, 2001, to August 12, 2014, and in excess of 70 percent since August 13, 2014, under 38 C.F.R. § 4.130, DC 9411. 

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10 (2016). The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2016).

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). The Veteran appealed the initial disability ratings assigned after the grant of service connection. Thus, the appeal period stems since March 28, 2001. 

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The General Rating Formula for Mental Disorders assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is assigned 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.

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

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.

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2016). Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id.

The Veteran's records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores. These are based on a scale set forth in the DSM-IV reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 51-60 indicates "[m]oderate 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)." A score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267; see also Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although a medical professional's classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, it is not determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must consider all of the claimant's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126. 

An August 2001 VA mental health note showed that the Veteran stated that he was unhappy with his life. He also complained of relationship problems with his wife and step children. The psychiatrist noted that the Veteran was married for eight years. The Veteran endorsed symptoms of impaired sleep, nightmares, intrusive thoughts, startle response, hyperalertness, depression, neglect of personal hygiene, loss of interest in activities, poor motivation, difficulty with concentration and memory, and frequent crying. However, he denied symptoms of suicidal ideation and hallucinations. A mental status examination showed that the Veteran was in casual attire with good eye contact. He was oriented to time, place, and person. His thought processes were logical, coherent, and relevant. He did not show any looseness of associations, delusions, hallucinations, or suicidal or homicidal ideation, plan, or intent. His mood was depressed and his affect was appropriate. The psychiatrist stated that the Veteran's insight and judgement were fair, but his memory was impaired for recent events. The Veteran's symptoms were assigned a GAF score of 51. 

In another August 2001 VA mental health note, the Veteran complained of depression and difficulty sleeping. A mental status examination showed that he was alert and oriented to time, place, and person. His speech were logical and coherent. He did not have looseness of associations, delusions, hallucinations, or suicidal or homicidal ideation. His affect was appropriate, mood was depressed, and memory was impaired; however, his insight and judgment were fair. The psychiatrist again assigned a GAF score of 51. 

Similarly, the Veteran complained of frequent intrusive thoughts and periodic nightmares of Vietnam in an October 2001 VA mental health note. A mental status examination showed that the Veteran was neatly dressed and groomed. He was alert, cooperative, and oriented during the psychiatric evaluation. His mood was dysphoric and his affect was somewhat constricted. His symptoms did not include hallucinations, delusions, suicidal and homicidal ideation and intentions, looseness of associations, or a flight of ideas. 

During a November 2001 VA examination, the Veteran complained of PTSD symptoms that seriously affected his ability to form relationships with others. He endorsed symptoms of survivor's guilt, intrusive thoughts, nightmares, anger, interrupted sleep, anhedonia, poor concentration, suicidal thoughts in the past, frequent crying, poor motivation, and hopelessness. The examiner noted that the Veteran has been married for 13 years but that his marriage was struggling. The Veteran stated that he maintained minimum contact with his son. A mental status examination showed that the Veteran was well-groomed, cooperative, alert, and oriented. His mood was depressed with a constricted affect. His speech was tangential and circumstantial. His concentration was poor, but his insight and judgment were good and his memory was intact. He denied having any auditory and visual hallucinations, and suicidal and homicidal ideation. He also did not show any flight of ideas, ideas of reference, delusions, or paranoia. The examiner assigned a GAF score of 50. 

In a January 2002 VA mental health note, the Veteran endorsed symptoms of emotional numbness, loss of interest in activities, avoidance of activities related to the in-service stressor, impaired sleep, irritation and angry outbursts, difficulty concentrating, hyperalertness, a startle response, and repeated and disturbing memories, thoughts, dreams, and images of the in-service stressors. The VA psychologist assigned a GAF score of 50 for these symptoms. 

A May 2004 VA mental health note showed that the Veteran complained of depression, poor motivation, low energy, loss of interest in activities and work, crying spells, interrupted sleep lasting approximately two to three hours, intrusive thoughts, isolation, and withdrawal. A mental status examination showed that the Veteran had fair insight and judgement and he was alert and oriented to time, place, and person. His speech was logical and coherent. He did not show symptoms of looseness of associations, delusions, hallucinations, or suicidal or homicidal ideation. However, he did exhibit a constricted affect, anxious and depressed mood, and impair memory. The VA psychiatrist assigned a GAF score of 42. 

Similar symptoms were noted in an October 2004 VA mental health note, in which the Veteran complained of additional depressive symptoms that were caused by his marital difficulties. His energy was low and his motivation was poor. He asserted that he slept for approximately four hours and that his sleep was interrupted. He experienced frequent crying spells, intrusive thoughts, social isolation and withdrawal, and nightmares. He indicated that his relationship with his wife was impaired and that he had difficulty with interpersonal relationships. A mental status examination showed the same psychiatric symptoms that were noted in May 2004. The VA psychiatrist again assigned a GAF score of 42. Almost identical symptoms and complaints were noted in January 2005, March 2005, and June 2005 VA mental health program notes where a psychiatrist assigned GAF scores between 40 and 48. 

A January 2007 VA mental health outpatient note showed that the Veteran complained of poor motivation, feelings of depression, and impaired, restless, and interrupted sleep. He asserted that he had lost interest in activities and work. He reported frequent crying spells, sleeping for three to four hours per night, frequent nightmares, intrusive thoughts about combat experiences, isolation, and difficulty with interpersonal relations, including with his wife. A mental status examination showed that the Veteran was alert and oriented to time, place, and person. His speech was logical and coherent. He did not exhibit symptoms of looseness of associations, delusions, hallucinations, or suicidal or homicidal ideation. His mood was anxious, affect was constricted, and memory was impaired; however, his insight and judgment were fair. The psychiatrist assigned a GAF score of 45. Very similar symptoms were noted in an April 2007 VA mental health outpatient note. The VA doctor noted that the Veteran missed two days of work due to pain and depression. These symptoms were assigned a GAF score of 40. 

An August 2007 VA mental health note showed slightly improved symptomatology. The Veteran's level of anxiety had decreased and he was feeling calmer and more relaxed. Flashbacks and intrusive thoughts about combat were not as frequent as before, but they continued to occur. The Veteran sleep pattern had improved and he slept for approximately six hours per night. His motivation and interest in activities and work had also improved. However, the psychiatrist noted that the Veteran still had difficulty with interpersonal relationships and that his relationship with his wife was tense and conflictual. A mental status examinations showed that the Veteran was alert, and oriented to time, place, and person. His speech was logical and coherent and his insight and judgment were fair. His mood was anxious and depressed, and his affect was constricted. His symptoms did not include looseness of associations, delusions, hallucinations, or suicidal or homicidal ideation. 

A March 2008 VA mental health outpatient note showed that the Veteran's symptoms had worsened since August 2007. Specifically, he described feeling depressed with a limited interest in some activities. His symptoms also included restless and interrupted sleep for four to five hours per night, isolation, feeling withdrawn, difficulty with interpersonal relationships, and an exaggerated startle response. A mental status examination showed that he was alert and oriented to time, place, and person. His insight and judgment were fair, speech was logical and coherent, affect was constricted, mood was depressed and anxious, and memory was impaired. He did not show looseness of associations, delusions, hallucinations, or suicidal or homicidal ideation. The VA psychiatrist assigned a GAF score of 40. Very similar symptoms were noted in a June 2009 VA mental health outpatient note, except that the Veteran complained of worsening depression and anxiety symptoms. Likewise, comparable symptoms and a GAF score of 40 was noted in a March 2010 VA psychiatry note. 

In a June 2009 SSA record, the Veteran complained of depressive symptoms, decreased sleep, anxiety, tenseness, difficulty with interpersonal relationships, isolation and withdrawn feelings. A mental status examination showed that the Veteran was depressed, anxious, and with an impaired memory, but not suicidal. His insight and judgment were fair and he was appropriately oriented. The medical professional indicated that the Veteran's psychiatric symptoms mildly restricted his activities of daily living. These symptoms also caused mild difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence, and or pace. 

In a June 2009 VA social work outpatient note, the Veteran asserted that he could no longer work at his job because of his uncontrolled diabetes, depression, and PTSD. Several additional VA treatment records indicate that the Veteran sought continuous group therapy treatment for his PTSD in 2009. 

During a September 2012 VA examination, the Veteran's PTSD symptoms included intrusive thoughts, avoidance behaviors, hyperarousal, diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, difficulty falling or staying asleep, hypervigilance, depressed mood, and anxiety. The examiner noted that the Veteran was using medication to control his psychiatric symptoms. The examiner determined that the Veteran's symptoms amounted to occupational and social impairment with reduced reliability and productivity. 

In a November 2012 VA mental health note, the Veteran reported that he and his wife had generally stopped communicating other than a civil minimum for cohabitation. 

A March 2013 VA psychiatry note showed that the Veteran was appropriately dressed and groomed. His hygiene was normal. He was relaxed and cooperative. His speech was normal in rate and volume. His mood was calm and his affect was broad. He also had normal attention and concentration. His memory was intact. His thought process was normal, linear, and goal-oriented and his though content did not include auditory or visual hallucinations or delusions. His judgment, impulse control, and insight were fair. The doctor assigned a GAF score of 52. 

An August 2014 VA examiner determined that the Veteran's PTSD symptoms manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. Specifically, the examiner noted that the Veteran's symptoms included a persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and intrusive thoughts, dreams, and avoidance related to the traumatic events. The Veteran also endorsed symptoms of a depressed mood, anxiety, chronic sleep impairment, monthly panic attacks, social withdrawal, memory and concentration difficulties, flattened affect, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, including work or work like settings, inability to establish and maintain effective work relationships, and circumstantial, circumlocutory, or stereotyped speech. However, the Veteran's symptoms did not include self-injurious ideation, plan, or intent, and he did not present a danger to himself or others. The examiner noted that the Veteran maintained a relationship with his son and that he lived with his wife. The examiner also noted that the Veteran retired in 2009. 

During a May 2015 private telephone vocational employability assessment, the Veteran reported feeling depressed with little motivation. He cried during the evaluation. He told the vocational rehabilitation consultant that he was able to work prior to 2009 because his employers tolerated his work absences. He indicated that he missed work due to his poor mood, lack of motivation, medical appointments, and lack of sleep, as well as symptoms related to his physical disabilities. He also asserted that his symptoms included poor motivation, limited social relationships, strained marital relationship, intrusive thoughts, and nightmares with interrupted sleep. The consultant indicated that these symptoms impact the Veteran's day to day ability to engage in work or social activities. The consultant opined that the Veteran's service-connected disabilities prevent him from securing and following gainful employment, in part, because his PTSD symptoms of low motivation, a mood disorder, poor social relationships, and poor sleep cause an inability to be reliable. 

Most recently in an August 2016 VA psychiatry note, the Veteran reported no recent panic attacks, but he indicated that he continued to struggle in his marriage. His symptoms included a depressed mood, anxiety, sleep of five to six hours, nightmares, low energy, difficulty concentrating, hypervigilance, intrusive thoughts of trauma, flashbacks, exaggerated startle response, feelings of detachment from others, avoidance of external reminders and distressing memories, thoughts, and feelings about trauma. He denied feeling guilty or worthless. A mental status examination showed that he was alert and dressed appropriately. He was calm and cooperative. His speech was normal in rate and volume. His mood was anxious and affect was constricted. His attention, concentration, thought processes, and memory were normal. His thought content did not include auditory or visual hallucinations or delusional thoughts. His judgment and insight were fair. He was oriented to person, place, situation, and date. He denied suicidal and homicidal ideation and the doctor noted that the Veteran was at a low risk of harm to self and others.

The Veteran's PTSD signs and symptoms have manifest as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood since March 28, 2001, due to symptoms of impaired sleep, constant depression, disturbances in mood, loss of interest in activities, social isolation and withdrawal, detachment from others, and an inability to establish and maintain effective relationships. Specifically, beginning with the August 2001 VA mental health note, the evidence has shown that the Veteran's sleep was impaired and that he had a severely-strained relationship with his wife. In fact, the Veteran reported that his PTSD impaired his marital relationship in October 2004, January 2007, August 2007, November 2012, and August 2014. Furthermore, the Veteran was noted to have a depressed mood during all psychiatric evaluations beginning in August 2001. Moreover, the Veteran' symptoms included isolation and social withdrawal in May 2004, October 2004, January 2007, March 2008, June 2009, and August 2014. The evidence also shows that the Veteran retired early due to his service-connected disabilities, including PTSD.

The evidence described above shows that there has been some fluctuation in the Veteran's signs and symptoms, especially during the period from August 2007 to March 2008; however, the frequency, severity, and duration of these symptoms indicates that they do not abate such that he has a sustained remission. He is essentially isolated, depressed, and unable to establish and maintain effective relationships as evidenced throughout the appellate period. Although the September 2012 VA examiner concluded that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity, the Board finds that his PTSD has been characterized by occupational and social impairment with deficiencies in most areas. These symptoms warrant a disability rating of 70 percent since March 28, 2001. 

However, the Veteran's symptoms have not approximated a disability picture requiring a rating of 100 percent because the claims file does not show total occupational and social impairment. In fact, the GAF scores between 40 and 52 show that his symptoms were moderate, serious, or showed some impairment in reality testing or communication, or major impairment in several areas, such as work, or school, family relationships, judgment, thinking, or mood. Although the Veteran has a strained relationship with his wife, he is still currently married, resides with his spouse, and has a relationship with his son. His numerous psychiatric evaluations have shown that his speech was linear and logical, judgement and thinking were fair, and that he did not exhibit any symptoms homicidal ideation, auditory or visual hallucinations, or suicidal intent or plan. Although his symptoms included memory impairment, he did not show signs of memory loss for names of close relatives, own occupation, or own name. He was always oriented to time, place, and person. Consequently, the frequency, severity, and duration of the PTSD symptoms have not resulted in total occupational and social impairment. 

Accordingly, the benefit-of-the-doubt rule applies and the Veteran's PTSD warrants a disability rating of 70 percent, but not higher, since March 28, 2001. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

Extraschedular Considerations

The Board has considered whether the evaluation of the psychiatric disability should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2016); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. In exceptional situations where the rating is inadequate, the case may be referred for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id.

Referral for extraschedular consideration is not warranted. A comparison of the Veteran's disability and the applicable rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) The Veteran's PTSD symptoms mainly manifested in impaired sleep, constant depression, disturbances in mood, loss of interest in activities, social isolation and withdrawal, detachment from others, and an inability to establish and maintain effective relationships. He does not report any symptoms associated with these disabilities that are not included in the rating criteria or have otherwise been left uncompensated or unaccounted for by his assigned schedular ratings. See 38 C.F.R. § 4.130, DC 9411; see also Thun, 22 Vet. App. at 115. There is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, see id. at 118-19, and referral for extraschedular consideration is not warranted.

The Veteran has other service-connected disabilities. However, the record as a whole has not indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria to rate the PTSD disability. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the additional service-connected disabilities in concluding that referral for consideration on an extraschedular basis is not warranted.

The Board has considered whether entitlement to any special monthly compensation (SMC) benefits is warranted for the PTSD disability; however, it determines that any additional SMCs are not applicable at this time. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2016); Akles v. Derwinski, 1 Vet. App. 118 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011).

The Board has also considered whether to address the issue of a TDIU prior to August 13, 2014. See 38 C.F.R. §§ 3.340, 4.16 (2016); see also Rice v. Shinseki, 22 Vet. App. 447, 453 and 455 (2009). In an August 2016 rating decision, the AOJ granted a TDIU, effective August 13, 2014. A review of the Veteran's records shows that the AOJ is currently taking action on the Veteran's appeal of the initially-assigned effective date and that entitlement to an earlier effective date for this claim depends on the adjudication of several increased rating and earlier effective date claims that are not currently before the Board. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, the Board shall not further discuss entitlement to a TDIU prior to August 13, 2014, in this decision. 

Service Connection for a Skin Disability

The Veteran asserts that a skin disability on his feet and body was caused by his military service in Vietnam. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 

Service connection can be established through application of statutory presumptions, to include those diseases associated with exposure to certain herbicide agents, including Agent Orange. Because the Board can adjudicate the Veteran's claim based on direct service connection, it shall not discuss the application of herbicide exposure presumptions below. See 38 C.F.R. §§ 3.307, 3.309 (2016). 

Several VA treatment records show that the Veteran has a current skin disability. Specifically, a February 2011 VA examination report shows that the Veteran was diagnosed with tinea corporis of the arms and torso, which had resolved. Furthermore, a July 2010 VA podiatry note showed that the Veteran was diagnosed with a tinea infection on his feet. A current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the first element of service connection is met. 

Regarding the second element, namely, the existence of a disease or injury in service, the Veteran's service treatment records are silent as to treatment or complaints of skin diseases or abnormal symptoms apart from a November 1973 separation examination that showed the Veteran diagnosed with probable lichen planus of the arms and upper back. However, the Veteran has consistently reported throughout the appeal that the skin symptoms on his feet began during his military service in Vietnam, including as due to his Agent Orange exposure and due to a moist, jungle environment. The Veteran has also asserted that these symptoms have reappeared intermittently since his time in Vietnam. Specifically, in October 2001, the Veteran contended that he "left the military with jungle rot" on his feet. He made similar contentions in November 2001 and December 2003, and during the June 2006 Board hearing. The Veteran is competent to report symptoms that he perceived through his own senses, including the presence of skin rashes and other skin symptoms on his feet. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's service personnel records corroborate his statements regarding his in-service activities and show that he served approximately one year in Vietnam. After resolving all doubt in the Veteran's favor, he contracted a skin disease on his feet in service. See 38 U.S.C.A. § 1154(a) (West 2014) (due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the service records, the official history of each organization in which the Veteran served, the medical records, and all pertinent medical and lay evidence). Thus, the second element of service connection is met.

Regarding the nexus element, the claims file includes many VA and private treatment records that discuss his skin symptoms and treatment; however, only the September 2009, February 2011, and July 2014 VA examiners and a July 2010 VA doctor discussed the etiology of this disability. Specifically, the September 2009 VA examiner concluded that the Veteran's eczematous rash on his bilateral upper extremities, neck, and back were not caused by or a result of the Veteran's time in service because the Veteran's service treatment records were silent as to any skin condition at the time of enlistment and discharge. However, as noted above, the Veteran's November 1973 separation examination showed abnormal skin symptoms and a diagnosis. Furthermore, the February 2011 VA examiner determined that it was probable that the Veteran's currently resolved tinea corporis was not related to his tour of duty in the military. However, this examiner did not provide a rationale for his opinion. The July 2014 VA examiner acknowledged that the Veteran's service separation showed a lichened rash on his arms and upper back, which was probably lichen planus, and that this disorder had resolved without residuals. This examiner determined that it was impossible for him to form an opinion regarding the Veteran's intermittent skin rash without resorting to mere speculation. The examiner stated that the only thing that could be determined with any degree of certainty was that there was no objective evidence of tinea corporis or lichen planus rash during the July 2014 VA examination. 

In contrast to this medical evidence is the July 2010 opinion of a VA podiatrist, who noted the Veteran's complaints of bad rashes on his feet during his military service in Vietnam and that these rashes continued since that time. After a physical evaluation, this doctor determined that the Veteran's rashes on the plantar aspect of both feet were consistent with rashes from other veterans who served in Vietnam. The doctor opined that the Veteran's bilateral foot rash was more likely than not associated with his time spent in Vietnam and can be related to the rashes he experienced while in service. 

In addition to this medical evidence, the claims file shows that the Veteran filed claims for service connection for a skin disability in August 1990 and March 2001. In October 2001, November 2001, June 2002, December 2003, and June 2006 statements, the Veteran has consistently asserted that his current skin disability of the bilateral feet began in service and has intermittently manifested since that time. 

After affording him the benefit of the doubt, the Veteran's bilateral foot skin disability is etiologically related to his military service. The Board has considered the Veteran's consistent contentions that his current skin disability of the bilateral feet started in service and that his symptoms have continued since that time on an intermittent basis. The Veteran's contentions are buttressed by the July 2010 VA doctor who determined that the Veteran's current skin symptoms were caused by his time in service and were consistent with symptoms seen in other Vietnam veterans. Furthermore, the claims file does not include any competent medical opinions indicating that the Veteran's current bilateral foot skin disability was not caused by his military service. 

Accordingly, after applying the benefit of the doubt doctrine, the evidence is in equipoise in showing that service connection for a skin disability is warranted. Thus, the Veteran's claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

The Board expresses no opinion regarding the severity of the disability. The AOJ will assign an appropriate disability rating on receipt of this decision, based on applicable regulation. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress).



ORDER

An initial disability rating of 70 percent, but not higher, for PTSD is granted since March 28, 2001. 

Service connection for a skin disability of the feet is granted. 


REMAND

The Board remands the claim of service connection for a sleep disorder for a new VA examination.

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran identify and secure any relevant private medical records pertaining to a sleep disorder that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file.

2. Obtain any outstanding VA medical records pertaining to a sleep disorder and associate them with the claims file.

3. After the passage of a reasonable period of time or upon the Veteran's response, schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of any current sleep disorder symptoms. All appropriate tests, studies, and consultations, including a POLYSOMNOGRAPHY test, should be accomplished and all clinical findings should be reported in detail. 

Based upon a review of the relevant evidence, history provided by the Veteran, physical examination, and sound medical principles, the VA examiner should DIAGNOSE all current sleep disorders, to include sleep apnea. The examiner should state whether the Veteran currently has any sleep disorder, including sleep apnea, or whether a sleep disorder has been present during any period on appeal, and provide opinions as to:

a. Whether the Veteran's current sleep disorder, to include sleep apnea, if any is present, began during service or is otherwise related to any incident of military service.

b. Whether the Veteran's current sleep disorder, to include sleep apnea, if any is present, is caused or AGGRAVATED by the Veteran's service-connected diabetes mellitus, type II, disability. 

In rendering the above opinions, the examiner must address the Veteran's history of sleep symptoms and previous sleep disorder diagnoses. The examiner must review and discuss the record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following:

*July 1967 service pre-induction and November 1973 service separation examinations containing no notation of any sleep-related symptoms or disorders. 

*January 2009 VA sleep study note showing the Veteran's complaints of falling asleep during the day and shortness of breath at night. His symptoms were assessed as a "sleep disorder." 

*March 2009 VA sleep study note showing the Veteran participated in an unattended home study, which revealed a substantial sleep-related breathing disturbance that appeared to have both obstructive and central components. The Veteran was started using an AutoPap machine and the doctor indicated that a full polysomnographic study should be conducted if the Veteran's symptoms are not alleviated with AutoPap. 

*An April 2009 VA respiratory therapy outpatient note showed that the Veteran was prescribed and educated on the use of a continuous positive airway pressure (CPAP) machine. 

*Several VA treatment records, including a July 2010 VA podiatry note and a February 2016 VA psychiatry note, showing a current problem list and past medical history diagnosis of sleep apnea or the use of a CPAP machine.

*May 2012 application for service connection for sleep apnea as due to the Veteran's service-connected PTSD. 

*August 2013 VA medical opinion report in which an examiner determined that the Veteran's sleep apnea was not caused or aggravated by his service-connected PTSD; however, the examiner did not provide the Veteran with a sleep study or indicate how the Veteran's diagnosis of sleep apnea was attained. This examiner indicated that a risk factor for sleep apnea was diabetes mellitus, which is a service-connected disability for this Veteran; however, the examiner did not opine whether the Veteran's sleep disorder, including sleep apnea, was caused or aggravated by this service-connected disability.

*July 2014 VA examination report during which the examiner noted that the Veteran never had a sleep apnea diagnosis. The examiner did not provide a medical opinion because evidence of obstructive sleep apnea was not established via polysomnography, and the examiner did not conduct any diagnostic tests or sleep studies. 

A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT.

4. After undertaking any other appropriate development deemed necessary, readjudicate the claim of service connection for a sleep disorder, to include sleep apnea, on the basis of the additional evidence. If the determinations remain adverse to the Veteran, he and his attorney should be furnished with a supplemental statement of the case (SSOC). An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs