Citation Nr: 1800318 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-34 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 50 percent for the period prior to March 31, 2016 for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for sleep apnea. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 and July 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that J. Michael Woods previously represented the Veteran. However, J. Michael Woods filed a motion to withdraw as the Veteran's representative for the issues on appeal in November 2016 after the certification of this appeal. In a February 2017 correspondence, the Board found that finds that the motion to withdraw as the Veteran's representative by J. Michael Woods met the criteria set forth in 38 C.F.R. § 20.608. Accordingly, the Board's databases have been updated to reflect that J. Michael Woods no longer represents the Veteran. The Veteran has not indicated that he desires another representative, thus, the Board will proceed under the assumption that he wishes to represent himself. See 38 C.F.R. § 20.608 (a) (2017). 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) (2012). The issues of entitlement to service connection for bilateral hearing loss, tinnitus, hypertension and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the period prior to March 31, 2016, the Veteran's PTSD was not manifested by occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW For the period prior to March 31, 2016, the criteria for an evaluation in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The RO provided notice to the Veteran in the March 2014 VA Form 21-526EZ. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 degree of disabilities 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; 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 to the disability picture that 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. See 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 Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). 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). Where there is a question as to which of two ratings shall be applied, the higher rating 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). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In a July 2016 rating decision, the RO increased the evaluation assigned to the Veteran's service-connected PTSD to 100 percent, effective March 31, 2016, the date of a VA examination which demonstrated the symptomatology for a 100 percent evaluation. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 50 percent 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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 affected 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 and maintain effective relationships. A 100 percent rating is assigned when there is 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. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 61 to 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. GAF 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]. 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]. Scores ranging from 31 to 40 reflect 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; child frequently beats up other children, is defiant at home, and is failing at school]. The Board notes that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. The Board observes that the DSM-IV provides GAF scores, but the DSM-5 does not. However, the Board will continue to consider the GAF scores provided during the course of the appeal. Factual Background and Analysis The Veteran filed a claim for increased rating that was received by VA on March 20, 2014. For the period from March 20, 2013 (one year prior to the Veteran's claim for increase) to March 31, 2016 (the effective date of the Veteran's 100 percent rating), the record demonstrates that VA treatment records noted that the Veteran had a history of PTSD. However, the treatment records for this time period did not specifically assess the Veteran's current symptoms or the severity of his PTSD disability. Notably, the Veteran was scheduled for VA examinations in June 2014 and January 2015 to assess the current severity of his service-connected PTSD. However, the Veteran failed to report for these examinations. On VA examination in March 31, 2016, the VA examiner determined that the Veteran's level of occupational and social impairment with regards to all mental diagnoses was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking and/or mood. As noted above, based on this examination, the RO in a July 2016 rating decision, increased the evaluation assigned to the Veteran's service-connected PTSD to 100 percent, effective March 31, 2016. After reviewing the evidence of record as a whole, the Board finds that the assignment of a disability rating greater than 50 percent for the Veteran's service-connected PTSD for the period prior to March 31, 2016 is not warranted. In this regard, the Board notes that for the applicable time period, there is little evidence regarding the Veteran's symptoms for his service-connected PTSD. VA treatment records noted a history of PTSD but again did not specifically address the severity or symptoms of the Veteran's service-connected PTSD. As noted above, the Veteran was scheduled for VA examinations in June 2014 and January 2015 to assess the current severity of his service-connected PTSD but failed to report for these examinations. The Board notes that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. See, Id. Under the foregoing circumstances, the Board will adjudicate the issue on appeal based upon the evidence that is currently of record for this time period. 38 C.F.R. § 3.655 (2017). As a result, the evidentiary record for the applicable period was negative for speech that was intermittently illogical, obscure or irrelevant; spacial disorientation; or near-continuous panic or depression affecting his ability to function independently. Further, there is no indication that the Veteran had impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. There are also no reported episodes of homicidal or suicidal ideation. The rating criteria for a 70 percent evaluation contemplate that a claimant be unable to establish or maintain social relationships. Again, as there is scant available evidence during this period, the Board concludes that an inability to establish and maintain effective relationships has not been shown by the evidence that is currently of record for this time period. Moreover, at no point in this time period did any examiner or treating physician find that the Veteran's symptoms caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as is required for the assignment of a 70 percent rating; or cause total occupational and social impairment, as is required for the assignment of a 100 percent rating. Accordingly, the evidence demonstrates that the Veteran does not have deficiencies in most of the areas, nor has he been shown to have most of the symptoms listed as examples in the 70 percent rating criteria for the time period prior to March 31, 2016. For this period, there is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, intermittent inability to perform activities of daily living as a result of his psychiatric symptoms, or disorientation to time or place. As discussed, the evidence also weighs strongly against finding that his disability is manifested by total social impairment for this period. Thus, the Board finds that the preponderance of the evidence is against the claim as the Veteran's symptoms more nearly approximate the criteria for a 50 percent disability rating for the period prior to March 31, 2016. For all the foregoing reasons, the Veteran's claim for entitlement to a rating in excess of 50 percent for service-connected PTSD for the period prior to March 31, 2016 must be denied. ORDER Entitlement to a rating in excess of 50 percent for the period prior to March 31, 2016 for PTSD is denied. REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. The Board notes that in its March 2015 rating decision, the RO stated that the Veteran's service treatment records were unavailable for review. However, a memorandum on a formal finding of unavailability has not been associated with the claims file. In the Board's present review, the file does not contain his complete service treatment records. Currently, the only service treatment record associated the Veteran's claims file is a single in-service statement from the Veteran indicating that his condition had not changed since his last medical examination. Notably, on VA audiological examination in March 2016, the VA examiner also specifically indicated that no service treatment records were found. Additionally, the Board notes that in a previous April 2011 rating decision which granted service connection for PTSD, the RO specifically listed evidence which included service treatment records for the period from September 1965 to September 1967. VA's duty to assist requires it to make as many requests as necessary to secure relevant Federal records, to include service treatment records. VA may halt efforts to secure such records only if VA concludes that the records do not exist or that further efforts to secure the records would be futile. Thus, on remand, additional efforts should be taken to obtain the Veteran's complete service treatment records and associate them with the claims file. 58 U.S.C. §5103A (b) (2012); 38 C.F.R. § 3.159 (c) (2) (2017). Regarding the Veteran's claimed bilateral hearing loss and tinnitus disabilities, as noted above, the Veteran underwent a VA examination in March 2016. However, the examiner indicated that no service treatment records were found. As a result, the examiner concluded that he could not determine a medical opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus without resorting to mere speculation. In this regard, the Board acknowledges that the Court has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that another remand is necessary to provide the Veteran with a new VA examination relating to his claim for service connection for bilateral hearing loss and tinnitus disabilities. Accordingly, the case is REMANDED for the following action: (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. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Request the Veteran's complete service treatment records from any appropriate source, and associate them with the claims file. As set forth in 38 U.S.C.§ 5103A (b)(3) and 38 C.F.R. § 3.159 (c)(2), the AOJ must continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action taken. All efforts to obtain these records should be memorialized in the Veteran's VA claims file. After considering the Veteran's statements, and other lay statement of record, determine whether any service treatment or personnel records remain outstanding but are unavailable. If so, a formal finding of unavailability should be associated with the Veteran's claims file and notice sent to the Veteran. 3. After the above development has been completed, and if service treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently present bilateral hearing loss and tinnitus disabilities. The examiner should furnish an opinion as to: a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's current hearing loss disability is related to active service. b) Whether it is at least as likely as not that the Veteran's current tinnitus disability is related to active service. The examiner is requested to discuss the Veteran's in-service noise exposure as the Veteran was noted to have in-service noise exposure from being around telegraph typists and air conditioning units while serving in Vietnam. Notably, the absence of treatment for hearing loss in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs