Citation Nr: 18141234 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-19 383 DATE: October 10, 2018 ORDER A 70 percent rating for PTSD, from January 16, 2013, through June 8, 2015, is granted, subject to the legal authority governing the payment of compensation. REMANDED The Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT From January 16, 2013, through June 8, 2015, the Veteran’s psychiatric symptoms have included anger and irritability, nightmares, hypervigilance, avoidance, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, obsessional rituals which interfere with routine activities, impaired impulse control, difficulty in adapting to stressful circumstances, and suicidal ideation; collectively, these symptoms of the type and extent, frequency and/or severity (as appropriate) that are indicative of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 70 percent rating for PTSD from January 16, 2013, through June 8, 2015, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1984 to December 1988 and March 1989 to February 1996. This appeal to the Board of Veterans’ Appeals (Board) arose the Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In A September 2014 rating decision, the RO denied service connection for sleep apnea. In November 2014, the Veteran filed a notice of disagreement (NOD) and a statement of the case (SOC) was issued in April 2015. In May 2015, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In the March 2016 rating decision, the RO denied a rating greater than 30 percent prior to June 9, 2015, and awarded a 70 percent rating for PTSD, effective from that date (the date of a VA examination). In August 2016, the Veteran filed a NOD and a SOC was issued in November 2016. In December 2016, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In October 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. With respect to characterization of the appeal, although the RO has characterized this matter as one for an earlier effective date for the award 70 percent rating for PTSD, given the procedural history, the appeal involving PTSD is one in which staged ratings have been assigned; hence, the matter on appeal actually concerns evaluation of the disability. In addition, although the Veteran has been granted a higher rating for his PTSD, as he has been assigned less than the maximum available benefit before and after June 9, 2015 (which he is presumed to seek), typically, the Board would consider a claim seeking a higher rating at each stage as remaining viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). However, during October 2017 Board hearing, as well as in multiple written statements, the Veteran expressed his satisfaction with the assigned 70 percent rating for his PTSD, and clarified that he was seeking assignment of the 70 percent rating from the filing of his claim for increase. Hence, with respect to evaluation of his PTSD, only the matter of the Veteran’s entitlement to a rating greater than 30 percent for PTSD prior to June 9, 2015, remains before the Board. The Board notes that the Veteran also has a pending appeal on the issues of service connection for skin disorder, gallbladder removal, as well as higher initial rating for bilateral knee disabilities and lumbosacral strain and for a TDIU, which will be addressed in (a) separate decision(s) because they were subjects of a separate hearing held by a different Veterans’ Law Judge. As a final preliminary matter, the Board notes that after certification of the appeal to the Board, additional treatment records, without a waiver of initial agency of original jurisdiction (AOJ) consideration were associated with the record. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. However, as the Board is granting the Veteran a uniform 70 percent rating for his PTSD from the date of his claim (January 16, 2013, through June 8, 2015), representing a grant to the full extent sought, a waiver is not necessary, as the Veteran is not prejudiced by the Board considering such evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37 (2017). See also section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Likewise, given the favorable disposition of the claim for an increased rating for PTSD from January 16, 2013, through June 8, 2015, to the full extent sought, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A 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 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation for distinct periods of time, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran’s PTSD has been assigned a 30 percent rating prior to June 9, 2015, under DC 9411. However, the actual criteria for rating psychiatric disabilities other than eating disorders are set forth in a General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is warranted for occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 30 percent rating requires a showing of 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, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for is 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 establishing effective work and social relationships A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 and place; memory loss for names of close relatives, own occupation or name. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). However, the symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 6(2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”-i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130. When evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). Turning to the evidence of record, a March 2013 VA treatment record notes the Veteran complained of continued irritability, having difficulty getting along at work with others when things are not done correctly, being a perfectionist and disciplined in his work, and he gets mad when he sees poor work ethics. He is now divorced four times and he says he is dealing with it well. His nephew was living with him and he had believed he would get along well with him, but he has realized his nephew does not follow rules and was not acting responsibly. He continued to have difficulty dealing with civilian ways of life and has been able to continue to work at the DoD, as he is still among military people but shows intolerance to poor work ethics. He was taking Celexa and Wellbutrin, which helped keep him calmer during the day and he was able to deal with stress without losing control. He had been using positive coping skills to control his behavior. He denied any recent panic attacks, sleep was fair, and reported infrequent bad dreams. He reported he was waiting for an interview for another job. His daughter had moved out. His mental status examination was normal. He was not suicidal or homicidal. A July 2013 VA treatment record notes the Veteran complained of having panic attacks daily since he had a falling out with his supervisor who suspended him for 2-3 days for something he said on Facebook. He reported having panic attacks when he goes to work and had to step out at least once a day to calm down. He denied any loss of control, denied physical aggression, denied any suicidal and homicidal ideations. He had been very irritable and on edge. He reported as long as he is away from work, he does well. He also reported having tearful episodes on his way to work in his car. He also reported having problems with his brother’s newly married wife who moved in with him (his brother is overseas) and he already had his nephew with him. His sister in law was interfering with his interaction with his nephew, so he asked her to leave. He appeared to have problems with authority who the Veteran believed had not handled his situation correctly. He had been using positive coping skills to control his behavior. He reported no new stressors, except he is waiting for an interview for another job. A July 2013 VA medical letter states the Veteran was being treated for his PTSD and “It is my opinion that he should be exempted from work as his medications are adjusted and needs approximately 2 weeks for stabilization. He will be reevaluated by me in 2 weeks-time.” An August 2013 VA treatment record notes the Veteran reported having problems at work, getting very anxious, and angry. He was unable to deal with his supervisor and wanted to get some time off to sort things. The Veteran reported he did well for some time, however, there was a meeting with his supervisor and he believed he was getting suspension for insubordination and being rude. He reported he was very anxious and upset, having anxiety attacks, and he does not feel he can go to work and be effective and functional. He admitted to using alcohol on the weekend, but agreed not to use any more. He denied feeling suicidal or homicidal and indicated if he gets some time off he may recover and think about alternate plans to deal with work issues. He was agreeable to medication adjustment as well as speaking with one of therapists/psychologist. In August 2013, the VA physician provided another letter, which states “It is my opinion that he should be exempted from work for approximately 4-5 weeks as his medications needs adjustments at this time.” An October 2013 VA treatment record notes the Veteran had interpersonal problems during which time he had a tendency to exhibit anger and irritability. He reports experiencing such symptoms especially when he sees that things are not done correctly at work or at home. He requested some time off during stressful situations to ensure that he does not express his anger towards anyone. He has not reported any history of physical aggressiveness in the past and has denied any legal issues in the past. He has accepted treatment offered to him and has been adherent to it. He was on the wait-list for anger management groups. 2014 to 2015 VA treatment records reflect the Veteran attended group anger management meetings. He was working on controlling anger and working on interpersonal reactions. Since January 16, 2013, the above-cited evidence indicates that, for the period of consideration, the Veteran experienced near-continuous panic and depression affecting the ability to function independently, appropriately, and effectively, obsessional rituals which interfere with routine activities, and an increasing inability to adapt to stressful circumstances and establish and maintain effective relationships. Collectively, the evidence reflects that the Veteran’s psychiatric symptoms have been of the type and extent, frequency or severity (as appropriate), to suggest occupational and social impairment with deficiencies in most areas. Consequently, the Board has resolved reasonable doubt in the Veteran’s favor in determining that the 70 percent rating is warranted from January 16, 2013. Here, the Veteran and his representative have argued that the Veteran is entitled to a uniform 70 percent rating, effective from the date of his increased rating claim, January 16, 2013, as indicated during the October 2017 Board hearing. As noted above, i as the Veteran has expressed his satisfaction with a 70 percent rating assigned for his PTSD for the period extending from January 6, 2013, and his assertions that his disability has been consistent throughout the period under consideration, the Board finds that the award of the 70 percent rating for this period constitutes a full grant of the benefit sought with respect to this claim. The Board has considered and decided the Veteran’s claim based on the evidence summarized above. Notably, no other issues have been raised by the Veteran or the evidence of record with respect to the claim herein decided. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). REASONS FOR REMAND The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the remaining claim for service connection for sleep apnea. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The Veteran asserts that he had breathing problems while sleeping during and since service. VA treatment and private treatment records note a diagnosis of sleep apnea, confirmed by sleep studies. An October 2017 statement from a former service member who served with the Veteran indicates the Veteran had an onset of irregular patterns of breathing four months after deployment to the Gulf. The Veteran alternatively asserts that his sleep apnea may be caused or aggravated by his service-connected PTSD, to include medications taken for this condition. Notably, the VA treatment records note the Veteran’s PTSD symptoms include sleep problems and his medication had caused him to gain weight. Given the above, the Board rrent assertions, the low threshold to trigger VA’s duty to provide an examination for this disability are met. McLendon, 20 Vet. App. at 83. Thus, medical opinions addressing the this disability—based on full consideration of the Veteran’s documented medical history and assertions, and supported by a thorough, clearly-stated rationale—are needed to resolve the claim for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to undertaking action responsive to the above, to ensure that that all due process requirements are met and the record is complete with respect to the matters, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Austin VA Medical Center (VAMC) and that records dated through June 2018 are associated with the file; however, more recent records may exist. Hence, records dated since June 2018 should be obtained. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, regarding any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted prior to adjudicating the remaining claim on appeal The matter is hereby REMANDED for the following action: 1. Obtain from the Austin VAMC all outstanding, records of evaluation and/or treatment of the Veteran since June 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA sleep apnea examination by an appropriate physician. The entire, electronic claims file, to include a complete copy of the REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions. Based on examination and review of all pertinent lay and medical evidence, the examiner should provide opinions, consistent with sound medical principles, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability: (a) had its onset during service or is otherwise medically-related to the Veteran’s service; or, if not . (b) (1) was caused or (2) is or has aggravated (worsened beyond rhe natural progression) by the Veteran's service-connected PTSD, to include medications taken for this disability. If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from the aggravation, to include by identifying (to the extent possible) the baseline level of disability prior to aggravation. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions, the Veteran’s assertions as to in-service breathing problems while sleeping, as well as the October 2017 (received in November 2017) buddy statement, and the assertions as to continuous symptoms since service; and the noted sleep problems and weight gain due to medications taken for PTSD. Notably, in addressing direct service connection, the absence of documented evidence of a diagnosis of sleep apnea and/or sleep problems during or shortly service should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner is advised that the Veteran is competent to report his symptoms, and history, and that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell