Citation Nr: 1754551 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-34 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected cardiomegaly and hypertension. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to a disability rating in excess of 30 percent prior to January 7, 2016, and in excess of 50 percent as of January 7, 2016, for posttraumatic stress disorder (PTSD). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 22, 2015. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The Veteran served on active duty in the United States Army from January 1964 to February 1990 with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's PTSD to 50 percent effective January 7, 2016. As the AOJ did not assign the maximum disability rating possible for the entire period on appeal, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). This issue has been recharacterized above. The Board notes that the issue of entitlement to an evaluation in excess of 30 percent for cardiomegaly was also certified by the AOJ. However, the Board finds that this issue is not currently before the Board. By way of procedural history, a March 2014 rating decision granted service connection for cardiomegaly, assigning a 30 percent evaluation effective March 1, 1990. This rating decision effectuated a Joint Motion to Terminate the Veteran's appeal of the November 2012 Board denial of service connection for a heart condition. The Joint Motion stipulated that VA and the Veteran agreed that a 30 percent initial evaluation would be assigned for cardiomegaly. As the March 2014 rating decision merely effectuated this final agreement between VA and the Veteran, the Veteran's notice of disagreement (NOD) as to this evaluation is not proper. As such, his October 2014 "NOD" is actually a new claim for an increased rating for cardiomegaly as of that date. As the AOJ has not issued a rating decision for this new claim, it must be referred for initial adjudication. The issue of entitlement to an evaluation in excess of 30 percent for cardiomegaly has been raised by the record in an October 2014 statement. However, this issue has not been adjudicated by the AOJ and the Board does not have jurisdiction over it. It is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of service connection for sleep apnea, the left shoulder, and the right hip are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected PTSD was manifested by no more than occupational and social impairment with reduced reliability and productivity without deficiencies in most areas or total occupational and social impairment. 2. The Veteran has a combined disability rating of no less than 70 percent and at least one single disability rating of no less than 40 percent. 3. The Veteran is unemployable based solely on his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for service-connected PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all of the evidence of record, with an emphasis on the medical evidence pertinent to the claim on appeal. Although all the evidence of record has been thoroughly reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the evidence shows, or fails to show, with respect to the Veteran's claims. I. Duties to Notify and Assist As the Veteran's TDIU claim is being granted herein, any error related to the VCAA is moot. 38 U.S.C. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the PTSD claim, the Board finds that the VA's duty to notify and assist has been met and the Veteran has not argued otherwise. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir 2011); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The AOJ sent an adequate notice letter to the Veteran in August 2011. All available service treatment records and post-service medical records have been obtained. The Veteran has not identified any outstanding records. With regard to the PTSD claim, the Veteran was last examined in January 2016 and has not provided any medical or lay evidence suggesting a worsening of his psychiatric disability since that time. Notably, a September 2017 VA psychiatric treatment record notes that the Veteran had no new complaints and that his mood had somewhat improved. A new VA examination is not necessary for this claim. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). II. Merits of the Claims A. PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's service-connected PTSD has been evaluated as 30 percent disabling prior to January 7, 2016, and 50 percent disabling as of January 7, 2016, under Diagnostic Code 9411. He seeks higher ratings. Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used. The General Rating Formula provides that a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 worklike setting); inability to establish and maintain effective relationships. 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran was first examined in conjunction with his PTSD claim in August 2011. At that time, he complained of avoidance, nightmares two times per week, flashbacks, irritability/outbursts of anger, hypervigilance, mildly depressed mood, diminished interest and motivation, and isolation. He attended monthly mental health appointments and took medication that was helpful but did resolve all symptoms. He also reported living with his wife of over 40 years and having four children. He indicated that he spent most of his time alone and watching television, but also attended weekly groups at the Vet Center. The examiner noted that his occupational functioning was not affected because he was retired, but that his social functioning was somewhat impaired. The examiner diagnosed the Veteran with PTSD, major depressive disorder (MDD), and alcohol dependence, noting that it was not possible to differentiate the symptoms between these diagnoses. He further concluded that the Veteran's service-connected psychiatric disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was next examined for his PTSD in May 2014. At that time, he complained of nightmares three times per week, hearing voices, easy irritability, hypervigilance, and occasional daytime intrusive thoughts associated with sadness and tears. He reported living with his wife of many years, but having no other significant friends or extended family and avoiding contact with the public other than when taking his wife to medical appointments. The examiner noted that he had a somewhat blunted affect, depressed mood, suspiciousness, and difficulty in establishing and maintaining effective work and social relationships. The examiner diagnosed the Veteran with PTSD and concluded that his PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. He further opined that the Veteran's PTSD would impact his ability to participate in employment that would require significant interaction with customer or the public. The Veteran was most recently examined for his PTSD in January 2016. At that time, he indicated that there was no significant positive or negative change in his overall psychological functioning since his last VA examination. He complained of flashbacks, nightmares, anxiety reactions when hearing gunshots or in crowds, depressed mood, suspiciousness, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He reported living with his wife, seeing his four grown children and four grandchildren at least two times per week, attending church two to three times per month, and speaking regularly on the phone to a friend who is a fellow Vietnam veteran. However, he noted that he had few significant social contacts outside of his immediate family. The examiner observed no abnormal behavior and no evidence of suicidal ideation, homicidal ideation, hallucinations, or delusions. The Veteran reported hearing voices mumbling at night, but not being able to make out what they are saying. The examiner diagnosed him with PTSD and concluded that it resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. He further opined that the Veteran's primary PTSD-produced occupational impairment would be difficulty managing interpersonal interactions which would make any sort of confrontation with supervisors, customers, or co-workers anxiety producing and result in disrupted concentration, efficiency, and ability to persist on a task. The medical evidence also includes VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. In addition to the medical evidence, the Veteran has provided written statements regarding his PTSD symptoms. This lay evidence is also consistent with the VA examination reports. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his depression warranted a 50 percent evaluation for the entire period on appeal. The medical and lay evidence supports a finding of occupational and social impairment with reduced reliability and productivity. Each of the three VA examiners found the Veteran had roughly consistent symptomatology. The Veteran has consistently reported depression, a limited number of relationships, and social isolation. The effect of these symptoms is occupational and social impairment with reduced reliability and productivity. Thus, rather than assigning staged ratings, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of a 50 percent rating throughout the appeal period. Although an increased rating of 50 percent is warranted, the evidence of record does not reflect symptoms of a severity to approximate the level of occupational and social impairment warranting a 70 percent disability rating. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. Here, there is no evidence of suicidal ideation during the appeal period, obsessional rituals, abnormal speech, near continuous panic or depression, spatial disorientation, neglect of personal appearance and hygiene, or an inability to maintain effective work and social relationships. The treatment records and multiple VA examination reports support a determination that the Veteran's symptoms were not indicative of occupational and social impairment that approximate the criteria for a 70 percent. While the evidence of record demonstrates impairment in occupational and social functioning, it does not show such impairment with deficiencies in most areas to warrant an increased rating of 70 percent. Indeed, although the Veteran's symptoms have limited his friendships, he did report attending church, regular visits and interactions with his immediate family, and regular contact with other veterans on the phone or at the Vet Center. Although he experiences significant occupational impairment, this is only one area to consider. There is no evidence of deficiencies in most areas, including family relations, judgment, or thinking. The social and occupational impairment reported by the Veteran and noted in the VA examination reports is covered by his current 50 percent evaluation. Without evidence of more serious social and occupational impairment with deficiencies in most areas, a higher rating of 70 percent is not warranted. Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 50 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Hart, supra. Accordingly, the Board finds that the Veteran's PTSD warrants a 50 percent evaluation throughout the appeal periods, but that the claim of entitlement to a disability rating in excess of 50 percent at any time during the appeal period must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, beyond that assigned herein, that doctrine is not applicable. 38 U.S.C. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. TDIU Initially the Board notes that the Veteran has been assigned a 100 percent combined evaluation as of September 22, 2015. As such, the Board will only consider whether he entitled to TDIU for the period prior to September 22, 2015. Prior to September 22, 2015, the Veteran had been granted service connection for several disabilities, including PTSD (50 percent disabling), cardiomegaly (30 percent disabling), diabetes mellitus type II (20 percent disabling), bilateral hearing loss (20 percent disabling), a left foot disability (10 percent disabling prior to September 30, 2013, 20 percent disabling as of September 30, 2013), a right shoulder disability (10 percent disabling), tinnitus (10 percent disabling), hypertension (10 percent disabling), a right foot disability (0 percent disabling), a chronic sinus condition (0 percent disabling), a left 5th metacarpal condition (0 percent disabling), erectile dysfunction (0 percent disabling), and a left foot scar (0 percent disabling). His combined rating was 90 percent according to 38 C.F.R. § 4.25. In light of his combined disability rating of at least 70 percent and his single disability rating of at least 40 percent, he meets the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2017). The remaining question is whether the Veteran is unemployable due solely to his service-connected disabilities. The Board finds that the evidence supports such. Significantly, the Veteran submitted a September 2013 private vocational evaluation. The vocational specialist indicates that the Veteran was unable to do physical work due to his bilateral foot and heart disabilities and that he was unable to work with the general public due to his PTSD and hearing loss. He further explained that the Veteran's multi-faceted PTSD symptoms create significant barriers to obtaining and maintaining employment as he would not be able to get along with others, concentrate, or make it to work consistently. Based on these limitations, the vocational specialist found that he had been unemployable throughout the appeal period. The September 2013 private assessment is supported by the two most recent VA examination reports which note that the Veteran would have significant difficulty interacting with customers, co-workers, or supervisors and concentrating to finish occupational tasks. This level of occupational impairment is the main basis for the Veteran's 50 percent evaluation for PTSD. In light of the significant difficulty that the Veteran would face due to his service-connected physical disabilities and inability to adequately perform in an employment setting due to his service-connected psychiatric disability, the Board is satisfied that the evidence of record shows that the Veteran's combined disabilities would render him unemployable in either a physical or sedentary environment. See Geib v. Shinseki, 733 F.3d 1350 (2013) (held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). In considering all of the Veteran's service-connected disabilities and affording him the benefit of the doubt, the Board finds that there is sufficient evidence that the Veteran is unemployable due solely to his service-connected disabilities. The criteria for TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). ORDER Entitlement to a disability rating of 50 percent for PTSD is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. Entitlement to TDIU is granted. REMAND Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's remaining claims. With regard to the sleep apnea claim, the Veteran has not been afforded a VA examination or opinion, despite medical evidence of a current diagnosis, service-connected cardiac disabilities, and his argument that his current sleep apnea is related to his service-connected cardiac disabilities. The claim must be remanded for VA examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the left shoulder and right hip claims, the Veteran was afforded a VA opinion in May 2013. The examiner found that these disabilities were not related to service because the Veteran was only treated one time for his left shoulder and one time for his right hip in service. However, this is inconsistent with the Board's review of the service treatment records showing multiple treatment records for the left shoulder and right hip. Further, the examiner failed to address the Veteran's contentions of continuous left shoulder and right hip pain since service. In light of these deficiencies, the left shoulder and right hip claims must also be remanded for new VA examinations and opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As the case is being remanded, the Board will take the opportunity to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file any outstanding VA treatment records from the Charleston VA Medical Center and any other VA facility identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. Thereafter, schedule the Veteran for VA examination(s) with appropriate examiner(s) to address the nature and etiology of his sleep apnea, left shoulder disability, and right hip disability. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examination(s). This must be noted in the examination reports. With regard to sleep apnea, the examiner should obtain a detailed history from the Veteran regarding the onset of any possible sleep apnea symptoms, including snoring. The examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea (1) had its onset in service or was otherwise etiologically related to active service, or (2) was caused or aggravated (made worse) by his service-connected cardiac disabilities. The examiner should specifically address the March 1995 consult request noting that the Veteran's history was consistent with sleep apnea, less than five years after discharge. With regard to the left shoulder disability, the examiner should obtain a detailed history from the Veteran regarding the onset of his left shoulder symptoms. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed left shoulder disability had its onset in service or was otherwise etiologically related to active service. The examiner should address the multiple service treatment records noting left shoulder pain (May 1968, June 1968), as well as any contentions regarding continuous left shoulder pain. With regard to the right hip disability, the examiner should obtain a detailed history from the Veteran regarding the onset of his right hip symptoms. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed right hip disability had its onset in service or was otherwise etiologically related to active service. The examiner should address the multiple service treatment records noting right hip pain (September 1983, October 1983, November 1983, December 1983), as well as any contentions regarding continuous right hip pain. Rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above actions, the Veteran's claims should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs