Citation Nr: 1803965 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-12 772 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a disability rating greater than 50 percent for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for residuals of squamous cell carcinoma of the tonsil. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1969, to include combat service in Vietnam. He was awarded the Combat Infantry Badge and the Vietnam Campaign Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 RO decision. In November 2016, the Veteran presented sworn testimony in support of his appeal during a videoconference hearing before the undersigned Veterans Law Judge. The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran testified during the hearing on appeal that he is employed on a full time basis, although he wishes he did not have to work. We observe that he meets the schedular criteria for eligibility for an award of a TDIU set forth in 38 C.F.R. § 4.16. As he is successfully working, however, he is demonstrably not unable to secure or follow a substantially gainful occupation, which is the purpose for which the TDIU benefit is designed. For this reason, the Board will not take up the question of TDIU as intertwined with the claim for an increased rating for PTSD. We observe, however, that this matter was discussed during the hearing on appeal, and the Veteran was informed of the criteria for a TDIU rating at that time. The issue of entitlement to service connection for residuals of squamous cell carcinoma of the tonsil is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection is in effect for diabetes mellitus and PTSD. 2. Obstructive sleep apnea has been medically linked to the Veteran's service-connected diabetes and PTSD. 3. The Veteran's service-connected PTSD causes occupational and social impairment, with deficiencies in most areas, but does not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.326(a) (2017). 2. A disability rating of 70 percent for PTSD, but no higher, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, neither the Veteran nor his representative has 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 a duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Sleep apnea Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. The Veteran was diagnosed with obstructive sleep apnea in 2011. He asserts that he has had difficulty with loud snoring ever since service, and he believes these symptoms represent the initial onset of sleep apnea. Several of his fellow Army Rangers have submitted statements to the effect that the Veteran's snoring was loud and disruptive in Vietnam. The Veteran's primary care physician has submitted informed medical opinions to the effect that the Veteran's sleep apnea was medically diagnosed after he gained weight related to his service-connected diabetes mellitus. The diabetes was initially diagnosed in July 2005. The physician has proffered his medical opinion that, the Veteran's "obstructive sleep apnea is more likely than not, secondary to his dysmetabolic syndrome, i.e., diabetes mellitus." The same physician has also presented a written opinion that the Veteran's sleep apnea has been aggravated by his PTSD symptoms. The Veteran and his wife have both noted that when the Veteran experiences a PTSD-related nightmare, he often tears away the CPAP mask, which then impairs his sleep quality further. The Veteran's representative has submitted multiple medical articles demonstrating the causal relationship between diabetes, weight gain, and apnea, and also some articles showing that PTSD can have an aggravating effect upon sleep apnea. On balance, the Board finds that the evidence supports a grant of service connection for sleep apnea. The statement of the Veteran's treating physician is particularly probative in establishing that the Veteran's obstructive sleep apnea is etiologically related to his service-connected diabetes and associated weight gain. Although a VA medical examiner noted that diabetes is not known to be a direct cause of apnea, the VA examiner did not consider the relationship between diabetic weight gain and apnea. VA's General Counsel has determined that, obesity per se is not a disease or injury for purposes of 1110 and therefore may not be service-connected on a direct basis, obesity may act as an "intermediate step" between as service-connected disability and a current disability that may be service-connected on a secondary basis under 3.310. VAOPGCPREC 1-2017 (Jan 6, 2017). We therefore find that the opinion from the Veteran's physician is better explained and more probative. For these reasons and upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for obstructive sleep apnea secondary to service-connected Type II diabetes mellitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1. Because this appeal has been ongoing for a lengthy period of time, and because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 38 U.S.C. § 5110; Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 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. Under the governing regulatory criteria, mental disorders are rated under a "General Rating Formula for Mental Disorders." 38 C.F.R. § 4.130. The pertinent provisions of the General Formula are as follows: 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. [50 percent] 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. [70 percent] 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. [100 percent] 38 C.F.R. § 4.130, Diagnostic Code 9411. The "such symptoms as" language of the diagnostic codes listed above means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The VA has recently revised its regulations governing the evaluation of psychiatric disorders, to among other things, rely upon the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 80 Fed. Reg. 14308 (March 19, 2015). However, the newly-revised criteria apply only to applications that were received by VA or that were pending before the agency of original jurisdiction on or after August 4, 2014. These new provisions do not apply to claims pending before the Board on or before August 4, 2014. In this case, the Veteran's appeal was filed at the RO in September 2011 and was not certified to the Board until July 2016, so the revised regulations are applicable to this case, and the Veteran's evaluation must be based upon the DSM 5 criteria. Service connection for PTSD was granted in an October 2003 RO decision. A 30 percent disability rating was assigned at that time, and was later increased to 50 percent effective in May 2004, based upon VA treatment reports showing increased symptomatology. The Veteran filed the current claim for increase in September 2011. The evidence of record shows that the Veteran takes medication for control of his PTSD symptoms, sees his VA psychiatrist every two or three months, experiences nightmares, and short temper. He reports difficulty getting along with people at work. He also reports that his PTSD worsened because of his cancer diagnosis. During the hearing on appeal, he described a suicide attempt after he received the diagnosis, which was fortunately thwarted by his son. The suicide attempt is reflected in his contemporaneous VA treatment records as well. In addition to his full-time job in information technology, he is a part-time jazz musician, but due to effects of the cancer treatment in and near his vocal cords, he was unable to sing until recently. Upon careful review, the Board finds that impairment from the Veteran's PTSD is more nearly analogous to the criteria set forth for the 70 percent award, reflecting occupational and social impairment, with deficiencies in most areas such as difficulty in adapting to stressful circumstances, near-continuous panic or depression, and impaired impulse control. The stressful impact of his cancer diagnosis appears to have triggered a worsening of his PTSD symptoms. In our view the suicide attempt represents a worsening of his psychological state to the point where the 50 percent evaluation is inadequate. Whether the worsening was situational or temporary is unclear; that his symptoms worsened is not in doubt. As discussed above, however, the Court has interpreted the laws and regulations governing disability ratings to recognize the dynamic nature of many disabilities, including psychiatric ones, resulting in distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. O'Connell and Hart. The way our administrative system recognizes this fact is through an application of staged ratings. Due to the practicalities of our system, these staged ratings are often assigned long after the events which triggered the increased rating, or indeed, a decreased rating, if appropriate. This may or may not be the case here, as the evidence is not in yet regarding whether the Veteran's PTSD symptoms have improved or reverted to their previous levels following his recovery from cancer. Because in our view the 70 percent rating was warranted when the Veteran filed his claim for an increase, the 70 percent should be assigned now, rather than a remand to determine whether the Veteran has demonstratively improved. The preponderance of the evidence is against an award greater than 70 percent, however, as the evidence in no way shows the severity of PTSD necessary for a 100 percent rating. He does not manifest total occupational and social impairment, with symptoms such 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. In sum, the criteria for a 70 percent disability rating for PTSD have been met. A higher rating must be denied. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). ORDER Service connection for sleep apnea is granted, subject to the laws and regulations governing the award of monetary benefits. A 70 percent disability rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is seeking service connection for residuals of squamous cell carcinoma on his tonsil. He reports the malignancy was removed at the Brooke Army Medical Center in 2011, followed by radiation therapy and chemotherapy. However, none of these treatment reports, including the pathology information, are available for review by adjudicators. Prior to any further analysis of the legal theories of entitlement to service connection for this cancer, primary documentation of the exact cancer and the medical evaluations and treatment he underwent must be obtained for review. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F. 3d. 1239 (Fed. Cir. 1997); writ of cert den. 522 U.S. 1151, 140 L Ed. 2d 181, 118 S. Ct. 1171 (1998) (presumptive service connection refers to primary cancer cite and not metastatic). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all non-VA medical care providers who treated the Veteran for carcinoma on his tonsil, to include those at Brook Army Medical Center. After securing the necessary release(s), the RO should obtain these records for inclusion in the claims file. 2. After the development requested above has been completed, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs