Citation Nr: 1804573	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  15-42 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for sleep apnea.

2. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD).

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

W.V. Walker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1956 to January 1973 and received an honorable discharge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, and a December 2014 rating decision by the VA Appeals Management Center.

In November 2017, a videoconference hearing was held and the Veteran and his spouse testified before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the Veteran's claims file. 

In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that every claim for a higher evaluation includes a claim for TDIU when a veteran claims that his service-connected disability prevents him from working.  In this case, the record raises the issue of TDIU; thus, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU.

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 issue of service connection for sleep apnea and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


FINDING OF FACT

For the entire appeal period, the Veteran's PTSD has been characterized by occupational and social impairment with reduced reliability and productivity.


CONCLUSION OF LAW

The criteria for a rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Applicable Law

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  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.  The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.  
 
The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999).  In this case, the Veteran's disability has not significantly changed and a uniform evaluation is warranted.

The Veteran's PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  Under DC 9411, a noncompensable rating is assigned for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.
 
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.

Analysis

The Veteran contends that he is entitled to an increased rating for his PTSD because the current assigned rating does not adequately represent the severity of his condition.  The evidence demonstrates that the Veteran's PTSD has been characterized by occupational and social impairment with reduced reliability and productivity.  The Veteran underwent a VA examination in July 2007 and his reported symptoms included anxiety; depression; sleep impairment; irritability; decreased energy; crying spells; occasional panic attacks; impaired memory; hypervigilance; exaggerated startle response; decreased interest in hobbies and social activities; and, feelings of detachment or estrangement from others.  Similarly, at the August 2013 VA examination, the Veteran reported memory problems that interfered with his ability to work and drive far distances; anxiety; nightmares; sleep impairment; and, fleeting thoughts of suicidal ideation in the past. September 2013 VA Examination, pp. 15-20.

The Veteran's symptoms as demonstrated in his treatment records vary.  In an April 2006 private treatment record, the Veteran reported having "frictional" interactions with his girlfriend; difficulty falling and staying asleep; isolation; hypervigilance; and, anxiety. April 2006 Private Treatment Records, pp. 1-3.  The physician did not note any memory impairment.  In a February 2007 VA treatment note, the Veteran reported enjoying fishing, yard work and socializing with friends, but also noted that he was not close to too many people and that he experienced agitation when he thought about past events. January 2007 VAMC Other, pp. 14-15.  He also stated that he had trouble with concentration, motivation, fatigue, anxiety and irritability.  

The Veteran and his spouse testified at the November 2017 hearing.  The Veteran again reported experiencing forgetfulness; mood disturbances; irritability; panic attacks; a lack of interest in socializing with people; and, a lack of interest in meeting new people.  He also reported experiencing panic attacks. November 2017 Hearing Transcript, pp. 4, 7, 10-13.

In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture more closely approximates the picture contemplated at the 50 percent.  The Board finds, however, that the Veteran's symptomatology has not approximated that required for a 70 percent disability rating, or an even higher 100 percent rating.  Specifically, the evidence demonstrates neither total occupational and social impairment nor 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, or symptomatology of similar severity.  However, the evidence demonstrates a depressed mood; anxiety; chronic sleep impairment; memory impairment; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective social relationships.  The Board finds that the severity of the symptoms most closely approximate those contemplated by a 50 percent disability rating.  Accordingly, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a 50 percent rating, and no higher, for PTSD.


ORDER

An increased initial rating of 50 percent, and no higher, for PTSD is granted.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

Additional medical evidence is required in order to decide the Veteran's claim for sleep apnea.  The Veteran has a current diagnosis of sleep apnea, see December 2015 Private Treatment Records, p. 1, and claims this condition is the result of his active duty service or one of his service-connected conditions. See March 2014 Veteran's Supplemental Claim for Compensation; November 2017 Hearing Transcript, p. 14; January 2018 Correspondence.  The Veteran is currently service-connected for sinusitis and PTSD and has also submitted a buddy statement from someone who served with him that recounts the Veteran's snoring while stationed in North Carolina. See February 2016 Buddy Statement.  There is insufficient competent evidence in the claims file to determine whether a nexus exists between the Veteran's current condition and his service or service-connected conditions.  Accordingly, the Board finds that a remand is required for a VA examination to determine the nature and etiology of the Veteran's sleep apnea. 38 U.S.C. §5103A(d)(2) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The issue of entitlement to TDIU was raised in the December 2013 notice of disagreement and November 2015 substantive appeal.  The Veteran contends that he had to stop working because of his service-connected disabilities.  However, the Veteran does not currently meet the percentage thresholds for schedular TDIU. See 38 C.F.R. § 3.340, 3.341, 4.16(a) (2017).  The Board finds that extraschedular consideration of TDIU is warranted. See 38 C.F.R. § 4.16(b) (2017).  Accordingly, on remand, the AOJ should obtain a medical opinion that addresses the collective impact of the Veteran's service-connected disabilities on his employability.  After obtaining such an opinion, the claim for TDIU should be referred to VA's Director for Compensation Service for extraschedular consideration.

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. Obtain all updated treatment records, to include any records from the Fayetteville VA Medical Center from April 2016 to the present, and associate them with the claims file or virtual record.

2. After all outstanding records have been associated with the claims file, obtain a VA examination that addresses the nature and etiology of the Veteran's sleep apnea condition.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran's documented medical history and assertions.

The examiner should offer comments, an opinion and a supporting rationale for the following:

(a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his active duty service.  In addressing this question, the examiner is asked to specifically address the Veteran's reports of in-service snoring. See February 2016 Buddy Statement.

(b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is caused or aggravated by his service-connected PTSD.  If the examiner opines that the Veteran's PTSD has aggravated his sleep apnea, the examiner should indicate the extent of such aggravation by identifying the baseline level of the disability, and providing an explanation for the baseline used.  The baseline may be ascertained by the medical evidence of record and the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

(c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is caused or aggravated by his service-connected sinusitis.  In addressing this question, the examiner is asked to specifically address the article submitted by the Veteran in January 2018.  If the examiner opines that the Veteran's sinusitis has aggravated his sleep apnea, the examiner should indicate the extent of such aggravation by identifying the baseline level of the disability, and providing an explanation for the baseline used.  The baseline may be ascertained by the medical evidence of record and the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.

3. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination by an appropriate examiner.  The ultimate purpose of the examination is to ascertain the collective impact of the Veteran's service-connected disabilities on his ability to work.  If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the electronic claims file.  

The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical, education and employment history; day-to-day functioning; and, industrial capacity.  The examiner should address the Veteran's current ability to function in an occupational environment.

The examination report should also indicate if there is any form of employment that the Veteran could perform and, if so, what type.  A written copy of the report should be associated with the claims file.

4. After completing the above actions, refer the Veteran's case to VA's Director of Compensation Service for extraschedular consideration of the Veteran's TDIU claim pursuant to 38 C.F.R. § 4.16(b).

5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated.  If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case.  An appropriate period of time must be allowed for response.  Thereafter, if indicated, the case must be returned to the Board for an appellate decision.

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).




______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs