Citation Nr: 1754441 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-01 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to, and/or aggravated by, service-connected disorders. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file. The issue of service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire period on appeal, the Veteran's PTSD resulted in disability nearly approximating occupational and social impairment with reduced reliability and productivity due to symptoms of anxiety, depressed mood, anger, irritability, hypervigilance, nightmares, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran the criteria for an initial disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the appeal arises from the Veteran's disagreement with the initial disability rating assigned following the grant of service connection for PTSD, no additional notice is required. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. 38 C.F.R. § 3.159 (b)(3)(i); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also VAOPGCPREC 8-2003 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical 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. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded in-person examinations in July 2010 and February 2016. The VA examiners provided clear explanations in support of the 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"). The VA examinations and medical opinions are adequate to decide the Veteran's claim. VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. Increased Rating for Service-Connected PTSD Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Psychiatric disabilities, such as PTSD, are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. Id. A 50 percent disability rating requires 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; or difficulty in establishing effective work and social relationships. Id. A 30 percent disability rating requires occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, or recent events). Id. A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in May 2016, and therefore, the claim is governed by DSM-5. The use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See DSM-5, p. 16 (2013). In this case, however, DSM-IV was in use during the majority of the applicable appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV, p. 46 (1994). Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. at p. 47. Scores ranging from 41 to 50 reflect 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). Id. Scores ranging between 31 and 40 are assigned when there is some 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). Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. When determining the appropriate rating to be assigned for a service-connected mental health condition, the focus is on how the frequency, severity, and duration of the symptoms affect a veteran's occupational and social impairment, rather than on an absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The Veteran was granted service connection for PTSD effective October 3, 2010, and the disability was assigned a 30 percent disability rating. The Veteran filed a notice of disagreement with this rating decision, contending his disability warranted a 50 percent disability rating. Upon VA examination in July 2010, the VA examiner noted the Veteran had difficulty sleeping due to nightmares, and the Veteran reported getting three to three and a half hours of sleep on average. The Veteran also experienced regular panic attacks, irritability or outbursts of anger, and diminished interest or participation in significant activities. The Veteran also reported strained relationships with his wife and sister, and the VA examiner noted the Veteran's social involvement was limited. Upon VA examination in October 2010, the VA examiner noted the Veteran experienced difficulty with social relationships, mild decrease in his occupational functioning, and poor concentration. The Veteran also reported nightmares, intrusive thoughts, anxiety, chronic sleep troubles, and irritability. The VA examiner noted the Veteran had some affective blunting and poor emotional reactivity. The Veteran had a GAF score of 50. After resolving reasonable doubt in the Veteran's favor, the Board finds his disability picture due to PTSD most nearly approximated the criteria for a 50 percent rating. During his hearing, the Veteran reported panic attacks from six to seven times daily, consistent with the granted rating of 50 percent. Similarly, although he has demonstrated difficulty in maintaining relationships as evidenced by his two prior marriages, he is currently married and has been so since 2007. He testified to periodic but not debilitating memory loss. He evidenced an awareness of the names of his adult child, age and locations. Both as observed by the undersigned at his hearing and testified to by the Veteran, he does not neglect personal hygiene or his appearance. Although he testified to working singularly, he remains employed as a custodian for the postal service. In reviewing the criteria for a 70 percent disability rating and determining whether an evaluation in excess of 50 percent is warranted, the Board finds that the evidence does not establish that the Veteran's PTSD manifested by symptomatology more nearly approximating 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish or maintain effective relationships. Upon VA examination in February 2016, the VA examiner noted the Veteran demonstrated occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran experienced flashbacks and nightmares, symptoms of avoidance, negative alterations in cognitions and mood, as well as marked alterations in arousal and reactivity. The examiner noted no suicidal or homicidal ideations and no obsessional rituals. The examiner also noted the Veteran's speech was spontaneous, clear, coherent, relevant, and nonpressured, as well as a neat, adequately groomed, and appropriately dressed appearance. The Veteran has regularly denied suicidal and homicidal ideations. The Veteran has been consistently described as clean, pleasant, and well-spoken. The Veteran has described difficulty maintaining effective relationships, but is currently married and maintains a relationship with his adult daughter. The Veteran maintains a full time job. Although the Veteran has described some symptoms of impaired impulse control manifesting in angry outbursts, as well as difficulty maintaining effective relationships during his February 2017 hearing testimony, this alone does not justify a rating of 70 percent. ORDER A disability rating of 50 percent, but no higher, for PTSD is granted REMAND The Veteran was afforded a VA examination in November 2013 to determine the nature and etiology of his sleep apnea. However, an addendum opinion is necessary to determine whether the Veteran's sleep apnea is etiologically related to his service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran identify and secure any relevant private medical records 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 and associate them with the claims file. 3. After completing the directives above, RETURN THE FILE TO THE NOVEMBER 2013 VA EXAMINER and request that she again review the file and respond to the below inquiries. If that examiner deems it necessary or is otherwise unavailable, schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of any sleep disorder symptoms. THE EXAMINER IS ADVISED THAT BASED ON THE FACTS IN THIS CASE, SHE MUST RESPOND TO THE INQUIRIES BELOW, WITHOUT REGARD TO ANY VA EXAMINATION PROTOCOLS. Based upon a review of the relevant evidence, the November 2013 physical examination, and sound medical principles, the VA examiner should provide the following opinions: a. Is the Veteran's sleep apnea etiologically related to his service-connected diabetes mellitus, to include any prescription drugs used to treat his diabetes mellitus? b. If not, is the Veteran's sleep apnea aggravated beyond its natural progression by his service-connected diabetes mellitus, to include any prescription drugs used to treat his diabetes mellitus? The examiner should discuss what significance may be attached to the lay contentions and service treatment records, as well as provide a rationale for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons must be so stated. The VA examiner should, in such case, explain why it would be speculative to respond. In rendering the above opinions, the examiner must review and discuss the record. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following: *The June 2006 private treatment record noting the Veteran often wakes up out of his sleep to check his blood glucose and is not sleeping much; *The January 2010 VA treatment record where the Veteran reported sleep problems and anxiety secondary to experiencing a diabetic coma in 1991; *The October 2011 letter from Karen Diana, APN opining that the Veteran's PTSD symptoms make it difficult for him to tolerate his CPAP, aggravating his sleep apnea; *The November 2011 letter from Belinda Hillard, FNP opining that the Veteran's diabetes medications and diet caused his weight gain, resulting in sleep apnea; *The March 2017 letter from Angela Hammond, APN opining that the Veteran's PTSD symptoms make it difficult for him to tolerate his CPAP, aggravating his sleep apnea; *The March 2017 letter from Belinda Hillard, FNP opining that the Veteran's diabetes medications and diet caused his weight gain, resulting in sleep apnea. 4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs