Citation Nr: 1754083 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-06 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome (IBS). 2. Entitlement to service connection for sleep apnea. 3. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with mild depression from February 3, 2012. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and his sister ATTORNEY FOR THE BOARD A. Vieux, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1988 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011, January 2014, and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Jurisdiction over the appeal has been transferred to the Portland, Oregon RO. The issue of entitlement to an initial rating in excess of 50 percent for PTSD was previously before the Board in January 2014, when it was remanded for issuance of a Statement of the Case (SOC). During the pendency of the appeal, a rating decision in July 2015 awarded a temporary total (100 percent) rating for PTSD from April 20, 2015 through July 1, 2015. The award was for a hospitalization in excess of 21 days, pursuant to 38 C.F.R. § 4.29. The Veteran and his sister provided testimony during a hearing before the Board in March 2017. A transcript has been associated with the claims file. As detailed further below, the Veteran has limited the appeal of his rating for PTSD for the period beginning when he was unemployed for three months in 2012. See Board Hearing Transcript (Tr.) at 13, 25, 31-32. The issue has been recharacterized accordingly. The issue of entitlement to service connection for IBS is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Sleep apnea is not related to active service. 2. Since February 3, 2012, exclusive of the period of a temporary total rating, the Veteran's PTSD with mild depression has been manifested by occupational and social impairment with deficiencies in most areas. 3. Since November 1, 2014, the Veteran's service-connected PTSD has prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for a 70 percent rating for PTSD with mild depression are met since February 3, 2012, exclusive of the period of a temporary total rating. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a TDIU are met from November 1, 2014. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Sleep Apnea The Veteran's ex-wife stated that she never observed the Veteran stop breathing during sleep prior to service but started noticing in 1990 that he would stop breathing at night and would wake up briefly gasping for air. Further, she asserted that he began to snore very loudly. See February 2015 VA Form 21-4138. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service--the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran has a current diagnosis of sleep apnea, satisfying the first element of service connection. See, e.g., February 2010 private treatment record. Turning to the second element, the Veteran's service treatment records (STRs) are silent for any reference to sleep problems. For instance, the June 1992 separation exam report shows that he denied ever having frequent trouble sleeping. However, the Veteran's ex-wife indicated he had sleep problems in service but he did not report them, and the Board finds her competent and credible in her observations, satisfying element two. See February 2015 VA Form 21-4138. As to the final element, nexus, the key inquiry is whether the Veteran's sleep apnea is etiologically related to his military service. In March 2016, the Veteran was afforded a VA examination. The examiner opined that his sleep apnea is less likely as not incurred in or caused by his service. The examiner indicated that the primary risk factors for sleep apnea are age (increasing from young adulthood through the 50s to 60s), gender (male), obesity (the strongest risk factor), and craniofacial abnormalities. The examiner considered the ex-wife's history of symptoms of sleep apnea beginning during service, but indicated that sleep apnea cannot be diagnosed by symptoms alone because multiple conditions may give similar symptoms such as, snoring, upper airway resistance syndrome, insomnia, etc. Further, the examiner noted the absence of a diagnosis or suggestive symptoms being documented during service. The examiner opined that his sleep apnea is instead most likely caused by his established risk factors of age, obesity and gender. At the Board hearing, the Veteran asserted that he gained 50 pounds in service. Board Hearing Transcript (Tr.) at 4. To the extent that the Veteran suggests that his sleep apnea is secondary to obesity incurred in service, the Board notes that VA's Office of General Counsel recently held that obesity is not considered a disease or injury under VA's laws and regulations and may not be service connected on a direct basis. See VAOPGCPREC 1-2017. The Board is bound by the General Counsel's opinion as Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). While the opinion also noted that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a), neither the Veteran, his representative, nor the record raises this theory of entitlement. There is no competent nexus evidence in support of the claim. To the extent the Veteran and his ex-wife have asserted that there is a causal relationship between his service and his sleep apnea, they are not competent to opine on the etiology of sleep apnea. Accordingly, as the preponderance of the evidence is against his claim, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). PTSD The Veteran asserts that the symptomatology associated with his PTSD warrants a 70 percent rating since he took time off work in 2012 secondary to the worsening of his PTSD symptoms. See Board Hearing Tr. at 13, 25, 31-32. The Board agrees. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.S. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran is currently rated at 50 percent under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted when there is 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. Id. The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Following a review of the evidence of record, the Board finds that a rating of 70 percent is warranted since February 3, 2012. On that date, the Veteran presented for VA treatment noting recent worsening of PTSD symptoms. He reported loss of interest in daily activities; feeling distant and cut off from other people; feeling emotionally numb; feeling as if the future would be cut short; trouble falling and staying asleep; feeling irritable and angry; having difficulty concentrating; being on guard; and being easily startled. However, he denied thoughts that it would be better to be dead or thoughts of harming or killing himself at any time. It was also noted that he never had a suicide attempt. Further, he denied symptoms of mania or psychosis. He was assigned a Global Assessment of Functioning (GAF) score of 50, which is suggestive of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). In March 2012, Dr. C. provided a release from work short-term due to mounting symptoms of anxiety and depression. The Veteran was off work from March 15, 2012 through May 28, 2012 related to his PTSD. Dr. H. examined the Veteran in May 2012 and opined that the major contributing cause of the Veteran's current disability were preexisting conditions (55%); fear of job loss (15%) (worried that he will be fired or set-up by false accusations); personality conflicts (15%); alcohol abuse (10%); and too much unstructured time (5%). A September 2012 VA treatment record shows that he was assigned a GAF score of 50. A November 2012 VA treatment record indicates that the Veteran reported his job was stirring up PTSD symptoms. Further, he reported that nightmares, irritability and other hyperarousal symptoms were increasing. He continued to have restless sleep and anxiety. He also complained of daytime fatigue. The Veteran was afforded a VA examination in December 2013. The Veteran reported fleeting suicidal thoughts but denied a plan or intent. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. Further, the examiner opined that most of his occupational and social impairment was due to PTSD. The Veteran reported having difficulty coping with stress at work. He reported missing and leaving work early due to feeling overwhelmed on the job. The examiner noted that the Veteran's supervisor wrote a letter in December 2013 which indicated that he missed work, had difficulty coping with stress, and had accommodations at work related to his schedule. He was verbally reprimanded for a verbal outburst at work. The examiner also noted that he was withdrawn socially because of his PTSD. It was noted that he lived with his 2l year old developmentally delayed son. The Veteran reported that he had been the primary caregiver and advocate for his son. The veteran described himself as being isolated socially, and reported not having close friends and indicated he did not trust others. In September 2014, the Veteran was afforded a VA examination. It was noted that the Veteran indicated difficulty coping with stress on the job and was on FMLA, which he took on August 3, 2014. The examiner noted that his symptoms included irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical; aggression toward people or objects; hypervigilance; problems with concentration; and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). The examiner indicated that he was casually dressed with adequate grooming; spoke freely and spontaneously throughout the exam; he showed no observable signs of cognitive problems; he was able to answer questions appropriately, recall remote events and track the conversation; he was correctly oriented to person, place, time, and purpose; his thoughts were logical and goal directed; there were no signs of major psychopathology such as hallucinations or delusions; and his affect was within normal limits and mood was neutral. Nevertheless, the examiner opined that his PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Dr. W., the Veteran's treating psychologist, wrote a statement on the Veteran's behalf in September 2014 noting PTSD symptoms of a moderate to high level of severity that have worsened in the recent years. September 2014 statements from the Veteran's brother and S.W. note the Veteran's recent report of suicidal thoughts. Dr. S. completed a September 2014 PTSD Disability Benefits Questionnaire (DBQ). He diagnosed PTSD; major depressive disorder; panic disorder; and alcohol abuse. He assigned GAF scores of 45-50 and noted that marijuana use and alcohol abuse was attributable to PTSD. Dr. S. opined that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. For the indicated level of occupational and social impairment, Dr. S. opined that it is not possible to differentiate what portion of the occupational and social impairment is caused by each mental disorder because the mental disorders are intertwined. There is no other competent evidence of record that does so. Thus, all of the Veteran's psychiatric symptomatology from this report is attributed to his service-connected PTSD. In February 2015, the Veteran was awarded long term disability benefits related to his job as a veteran service officer. A May 2015 VA examiner noted that the approval of long term disability benefits indicates the Veteran was unable to work his job due to mental disorders and substance abuse. An August 2015 VA treatment record indicates that he used cannabis nightly since the mid-1990s. An April 2015 VA examiner opined that it is most likely that the Veteran is unable to work his job as a veteran service officer due to the stress of the job exacerbating his PTSD symptoms. The examiner opined that it is likely his PTSD and secondary depression will cause occupational difficulties in a low stress work environment including intermittent difficulties concentrating, intermittent poor motivation, and intermittent irritability. Based on the evidence of record described above, the Board finds that the Veteran's PTSD is manifested by deficiencies in most areas, namely work, judgment, thinking, and mood, and a 70 percent rating is therefore warranted since February 3, 2012, exclusive of the period of a temporary total rating. As the Veteran's representative has clearly and specifically limited his appeal to seeking a 70 percent schedular rating, the Board need not address his entitlement to a 100 percent rating at this time. See February 2014 VA Form 9; Board Hearing Tr. at 13, 25, 31-32. TDIU Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See also 38 C.F.R. §§ 3.340, 3.341. The instant decision awards the Veteran a 70 percent rating for his service-connected PTSD. Further, he currently has a 20 percent rating for hemorrhoids and a 10 percent rating for tinnitus. Accordingly, the minimum percentage requirements for a TDIU have been met. 38 C.F.R. § 4.16(a). The Veteran is a high school graduate and has worked as a veteran service officer. In his November 2014 VA Form 21-8940, the Veteran reported that he last worked on August 16, 2014. However, at the Board hearing, he indicated that his last official day of work was October 31, 2014. See Board Hearing Tr. at 14. Dr. W. indicated in a September 2014 statement that the Veteran's current employment exacerbated his symptoms due to frequent contact with other Veterans who had experienced service traumas. The April 2015 VA examiner opined that it is most likely he is able to establish and maintain gainful employment in a less stressful work environment. However, Dr. L. indicated in August 2016 that the Veteran continued to have persistent symptoms related to PTSD and depression and secondary to his level of disability, and is not able to return to work. Further, Dr. S. indicated in September 2014 that the Veteran's employment as a veteran service officer significantly exacerbated his symptoms of PTSD and the Veteran reported high stress at work, and was no longer able to fully perform his job duties. Given the findings of Drs. L., S. and W., and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected PTSD prevents him from securing or following a substantially gainful occupation consistent with his education and occupational experience. Entitlement to a TDIU is therefore granted as the day following his last day of full time employment, or November 1, 2014. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). ORDER Entitlement to service connection for sleep apnea is denied. A 70 percent rating for PTSD with mild depression is granted from February 3, 2012, exclusive of the period of a temporary total rating. A TDIU is granted from November 1, 2014. REMAND An April 1997 private treatment record shows a diagnosis of IBS. Further, a June 1990 STR shows that the Veteran had a history of constipation. The Board finds that VA's duty to obtain a VA examination and medical opinion is triggered. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). Any outstanding treatment records should also be secured on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. With any necessary assistance from the Veteran, obtain all outstanding private medical records, to include any updated records from Kaiser Permanente. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his IBS. The Veteran's claims file should be provided to and reviewed by the examiner. All indicated studies should be performed. The examiner is requested to address the following: Is it at least as likely as not (50 percent or greater probability) that IBS had its onset in service or is otherwise the result of service? In addressing this question, please discuss the June 1990 STR noting that he had a history of constipation, and his testimony as to continuous alternating diarrhea and constipation in service. See Board Hearing Tr. at 7. The examiner should give a reasoned explanation for all opinions provided. 4. Then readjudicate the claim. The Veteran 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). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs