Citation Nr: 18144971 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-04 947 DATE: October 25, 2018 ORDER Service connection for obstructive sleep apnea is denied. An initial 30 percent rating for anxiety disorder not otherwise specified (NOS) and posttraumatic stress disorder (PTSD), is granted. A rating in excess of 50 percent for anxiety disorder NOS and PTSD, from June 29, 2012 to January 17, 2017, is denied. A rating of 70 percent, but no greater, for anxiety disorder NOS and PTSD, from January 17, 2017 to the present, is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted effective June 29, 2012. REMANDED Entitlement to an earlier effective date for the grant of service connection for anxiety disorder NOS and PTSD. Entitlement to an earlier effective date for the grant of service connection for coronary artery disease. Entitlement to a rating in excess of 10 percent for coronary artery disease. Entitlement to extraschedular TDIU, prior to June 29, 2012, is remanded. FINDINGS OF FACT 1. The Veteran served on active duty from January 1969 to September 1970. 2. Obstructive sleep apnea was not shown in service and is not shown to be etiologically related to service. 3. From June 28, 2010, the Veteran exhibited occupational and social impairment due to such symptoms as a depressed mood, anxiety, and chronic sleep impairment. 4. From June 29, 2012 to January 17, 2017, the Veteran exhibited panic attacks weekly or less often, chronic sleep impairment, hallucinations (auditory, visual, and olfactory), depression, anger, and anxiety without impairment of speech, thought processes, memory, judgment, insight, or maintenance of personal hygiene and resulting in reduced productivity and reliability. 5. From January 17, 2017 to the present, the evidence documents that anxiety disorder NOS and PTSD have been manifested by anger and impaired impulse control as demonstrated by his reported violent outbursts, impairment of short- and long-term memory including the inability to remember the names of friends and family, symptoms of near-continuous panic or depression that affect his ability to maintain personal hygiene and perform activities of daily living, and difficulty organizing his thoughts and tangential speech, resulting in deficiencies in most areas including work and family relationships, judgment, and mood. 6. From June 29, 2012 the Veteran has met the schedular requirements for TDIU and has been unable to obtain or maintain substantially gainful employment due solely to service-connected disability. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 2. From June 28, 2010, the criteria for a 30 percent disability rating for anxiety disorder NOS and PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 9413 (2018). 3. From June 29, 2012 to January 17, 2017, the criteria for a rating in excess of 50 percent for anxiety disorder NOS and PTSD were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (DC) 9413 (2018). 4. From January 17, 2017 to the present, the criteria for a rating of 70 percent, but no greater, for anxiety disorder NOS and PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, DC 9413 (2018). 5. From June 29, 2012, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service treatment records are negative for complaint, treatment, or diagnosis associated with obstructive sleep apnea. Further, the medical evidence does not reflect that this disorder is a result of the Veteran’s service. Post-service treatment notes reveal that obstructive sleep apnea was diagnosed after a December 2015 sleep study. Prior to the diagnosis, treatment notes consistently reflect no complaints or diagnoses of sleep apnea. Moreover, the Veteran has offered no evidence, lay or medical, that suggests that he had symptoms of sleep apnea in service or that his current diagnosis is otherwise associated with his military service. Absent evidence of in-service manifestation of sleep apnea and of a relationship between the Veteran’s sleep and service, service connection is not warranted. The Board has considered the Veteran’s lay statements that his obstructive sleep apnea was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current obstructive sleep apnea due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Increased Rating After a thorough review of the record, the Board finds that the Veteran’s appeal regarding the increased rating claim for his anxiety disorder NOS and PTSD should be considered from the May 31, 2011 rating decision granting him service connection for that disability. Although the Veteran did not submit a notice of disagreement to that decision, or submit a claim for an increased evaluation until June 29, 2012 (more than a year later), additional relevant evidence consisting of VA mental health treatment records were added to the record within one year of the May 2011 rating action. As a result, the Board does not consider the May 2011 rating action to be final and will consider the Veteran’s claim for an increased rating in connection with that decision. 38 C.F.R. § 3.156 (b); Turner v. Shulkin, 29 Vet. App. 207 (2018). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While a Veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a rating of 30 percent is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the evidence, the record reflects that the Veteran was granted service connection for anxiety disorder and assigned an initial 10 percent rating effective June 28, 2010. Private treatment notes dated in 2010 reflect that the Veteran experienced nightmares and flashbacks and would wake in a panic, but infrequent panic attacks. In addition, he was noted to experience auditory and visual hallucinations on a weekly basis, to have heavily increased anger and agitation, and an ‘extremely low’ energy level. At a March 2010 VA examination, the Veteran reported a constant low level of interest in activity, difficulty falling and staying asleep, panic attacks, and difficulty concentrating. Although he also reported past thoughts of suicide, he reported no current thoughts of suicide. He did report impaired relationships, but a strong relationship with his wife, and feelings of anger; he reported verbal altercations, but no physical altercations. His mood, affect, speech, attitude, and orientation were noted as normal, but he reported that he had memory issues such as, when driving, forgetting where he was going. The Board finds the Veteran’s symptoms prior to June 29, 2012 most closely approximated a 30 percent disability rating as he experienced occupational and social impairment due to depression, anxiety, panic attacks less often than weekly, chronic sleep impairment, and mild memory loss as indicated by his occasional inability to remember where he was going when driving. However, as the Veteran did not exhibit symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), or impaired abstract thinking, the Board determines that a rating in excess of 50 percent is not warranted prior to June 29, 2012. On June 29, 2012, VA received correspondence from the Veteran alleging that his acquired psychiatric disorder was more severe than as reflected by his prior rating. He is currently in receipt of a 50 percent disability rating effective June 29, 2012. At a November 2013 VA examination, the Veteran exhibited occupational and social impairment with reduced reliability and productivity due to symptoms including sleep impairment, auditory, visual, and olfactory hallucinations, depression, anger, intrusive thoughts, and anxiety. The examiner noted that the Veteran appeared clean during the interview. He fidgeted in the chair, and his speech was fast but at normal volume. Eye contact was direct and intense. Affect was stable and mood was anxious. Remote and recent memory were normal. The Veteran was oriented to person, place, and time and judgment and insight were intact. Thought processes were unremarkable. The examiner noted symptoms of depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. On January 17, 2017, VA received multiple lay statements from the Veteran as well as a copy of a VA Mental Health Disability Benefits Questionnaire (DBQ) that was completed by a private psychologist (Dr. HHG) and submitted by the Veteran. The private psychologist indicated that the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, or mood. She indicated that the Veteran was socially isolated and withdrawn with depressed mood, anxiety, and suspiciousness. He experienced panic attacks weekly, or less often, and near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively. He had chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, memory loss for names of close relatives, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran indicated that he experienced excessive nervousness/worry about his medical illnesses, feels fatigued from lack of sleep, was unable to socialize and avoids groups of people, was extremely anxiety, and felt helpless. The private psychologist noted normal attention and variable concentration, but the Veteran endorsed trouble with short-term memory and appeared to struggle with basic information. The Veteran reported auditory and visual hallucinations. He endorsed suicidal ideation, but expressed no plant or intent. In regard to this evidence of suicidal ideation, the Board acknowledges Bankhead v. Shulkin, 29 Vet. App. 10 (2017) indicating that such ideation can result in occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Lay statements from PB, RC, and LW submitted to VA on January 17, 2017, indicate that the Veteran was always panicked and unable to focus, and has trouble remembering names of longtime friends and family. They indicate that the Veteran rambles, goes off on tangents, and has trouble organizing his thoughts. All three statements also reflect that the Veteran angers easily and can become violent by throwing things. PB and RC also report that the Veteran tends to neglect his personal hygiene by forgetting to shower, shave, and put on clean clothes. LW indicates that the Veteran talks about suicide all the time. Although the record shows that the Veteran also has engaged in private and Vet Center treatment for his psychiatric disability, review of those records does not reflect symptomatology more severe than reflected in the examination reports above. In light of the above evidence, the Board finds that a rating in excess of 50 percent is not warranted prior to January 17, 2017 for the Veteran’s anxiety disorder NOS and PTSD, but that from January 17, 2017 to the present, a rating of 70 percent is more closely approximated by his symptoms. Prior to January 17, 2017 (the date VA received the private medical evidence and lay statements from the Veteran), the Veteran exhibited panic attacks weekly or less often, chronic sleep impairment, hallucinations (auditory, visual, and olfactory), depression, anger, and anxiety, but the record reflects that attention was normal as was his speech. As of January 17, 2017, the evidence documents anger and impaired impulse control as demonstrated by his reported violent outbursts. The evidence also reflects that the Veteran exhibited impairment of short- and long-term memory, including the inability to remember the names of friends and family, and had symptoms of near-continuous panic or depression that affected his ability to function independently, appropriately, and effectively, including his ability to maintain personal hygiene and perform activities of daily living. He also displayed difficulty organizing his thoughts and tangential speech. The Board determines that these manifestations warrant a 70 percent rating, but no greater, for the Veteran’s psychiatric disability as they demonstrate a decrease in the Veteran’s ability to interact with and communicate effectively with others as well as his cognitive function as demonstrated by additional impairment of memory and thought processes. Nevertheless, the Board finds that a rating in excess of 100 percent is not warranted, as the Veteran has maintained his relationship with his wife and Dr. HHG observed that his speech, attention, and judgment were average / normal and noted that he had maintained a few friends. Thus, the Board determines that the Veteran does not have total occupational and social impairment as a result of his psychiatric symptoms. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Thus, to the extent the Veteran believes a 100 percent for his service-connected anxiety disorder NOS and PTSD is appropriate, the Board affords the medical evidence greater probative value. TDIU A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Evidence associated with the record during the course of the appeal for an increased rating for the Veteran’s acquired psychiatric disorder suggests that the Veteran is unemployable due to service-connected disability. Therefore, the Board may address the issue of entitlement to TDIU as part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). During the appeal period, the Veteran met the threshold schedular criteria for a TDIU as of June 29, 2012. The Veteran has submitted three private opinions in support of his claim for TDIU. All three physicians reviewed the claims file. A December 2016 opinion from Dr. HS indicated that when the Veteran’s mobility, severe pain, inability to focus, and physical limitations are factored in, he is unable to maintain substantially gainful employment as a result of his service-connected disabilities. Dr. SB also opined in January 2017 that the Veteran is totally and permanently precluded from performing work at a substantially gainful level due to the severity of his service-connected disabilities. Although Dr. HS and Dr. SB appear to rely, in part, on impairment from nonservice-connected orthopedic disabilities in rendering their opinions, Dr. HHG noted in a November 2016 opinion that the Veteran’s anxiety disorder, alone, prevents him from maintaining substantially gainful employment. Based on an in-person examination of the Veteran as well as review of the claims file, Dr. HHG found that the Veteran could not sustain the stress from a competitive work environment due to fatigue and hypersomnia caused by sleep impairment, difficulty maintaining steady mood, ongoing issues with panic, poor interpersonal skills, workplace trust issues resulting in paranoia, struggles with appropriate work interaction. In light of the above, the Board finds that the evidence is in equipoise with regard to whether the Veteran is unemployable. The Board affords him the benefit of the doubt and herein awards TDIU from June 29, 2012. The period prior to June 29, 2012, is remanded and will be addressed below. REASONS FOR REMAND The Board observes that in a September 2014 notice of disagreement, the Veteran expressed disagreement not only with the ratings assigned for his coronary artery disease and his acquired psychiatric disorder, but he also clearly indicated that he disagreed with the effective dates of his awards of service connection. As the May 2011 rating decision granting service connection for an acquired psychiatric disorder remained on appeal by operation of 38 C.F.R. § 3.156(b), as explained above, a statement of the case regarding these issues must be issued to the Veteran. Manlincon v. West, 12 Vet. App. 239, 240-41 (1999). As stated above, prior to June 29, 2012, the Veteran’s service-connected disabilities did not meet the schedular requirements under 38 C.F.R. § 4.16 (a), for TDIU. However, the evidence of record, to specifically include the report of a March 2010 VA mental health examination, reflects the Veteran’s contention that he was, prior to June 29, 2012, unable to work due to symptomatology associated with his service-connected acquired psychiatric disorder. As the record raises a question as to whether his claim for TDIU should be referred for extraschedular evaluation under 38 C.F.R. § 4.16 (b) for the time period prior to June 29, 2012, and the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) in the first instance, his claim for TDIU prior to June 29, 2012, is herein remanded so that it may be referred to the Director, Compensation Service, for extraschedular consideration. See Floyd v. Brown, 9 Vet. App. 88 (1996). In addition, the most recent VA examination assessing the severity of the Veteran’s service-connected coronary artery disease was conducted in October 2013, five years ago. Given evidence of on-going treatment, the Board finds that another VA examination must be scheduled. These matters are REMANDED for the following action: 1. Issue a statement of the case in response to the Veteran’s September 2014 notice of disagreement as to the effective dates for the awards of service connection for coronary artery disease and his acquired psychiatric disorder. If he perfects his appeal by submitting a timely and adequate substantive appeal, it should be appropriately processed for appellate disposition. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. 3. Schedule the Veteran for an examination to assess the current severity, manifestations, and functional effects of his coronary artery disease. The entire claims file should be made available to and reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. 4. After any additional records are associated with the claims file, refer the Veteran’s claim for TDIU prior to June 29, 2012, to the Director, Compensation Service, for extraschedular consideration. Such consideration should include a discussion of the Veteran’s service-connected disabilities, employment history, and educational/ vocational history. 5. Adjudicate the issues remaining on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel