Citation Nr: 18145564 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-02 136 DATE: October 29, 2018 ORDER New and material evidence sufficient to reopen the claim for entitlement to service connection for a back disorder has not been submitted and the appeal is denied. New and material evidence sufficient to reopen the claim for entitlement to service connection for a bilateral knee disorder has not been submitted and the appeal is denied. New and material evidence sufficient to reopen the claim for entitlement to service connection for bilateral hearing loss has not been submitted and the appeal is denied. New and material evidence sufficient to reopen the claim for entitlement to service connection for tinnitus has not been submitted and the appeal is denied. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to March 7, 2018 and in excess of 70 percent thereafter is denied. Entitlement to an effective date prior to April 4, 2013 for the assignment of a 50 percent disability rating for PTSD is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to an effective date prior to March 7, 2018 for a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A March 2010 rating decision denied entitlement to service connection for bilateral knee and back disorders; the Veteran did not submit a notice of disagreement with this decision. 2. Evidence received since the March 2010 rating decision is cumulative with respect to the claims of service connection for back and bilateral knee disorders. 3. A December 2011 rating decision denied reopening claims for service connection for hearing loss and tinnitus; the Veteran did not submit a notice of disagreement with this decision. 4. Evidence received since the December 2011 rating decision is cumulative with respect to the claims of service connection for hearing loss and tinnitus. 5. The Veteran's claim for increase for his service-connected PTSD was received on April 4, 2013, and a June 2013 VA progress note established entitlement to a 50 percent disability rating for PTSD. 6. Throughout the claims period, the symptoms and overall impairment caused by the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but have not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied entitlement to service connection for back and knee disorders is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. Evidence received since the March 2010 decision in relation to the Veteran's claim for entitlement to service connection for a back disorder is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. Evidence received since the March 2010 decision in relation to the Veteran's claim for entitlement to service connection for a bilateral knee disorder is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 4. The December 2011 rating decision that denied reopening the claims for service connection for hearing loss and tinnitus disorders is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 5. Evidence received since the December 2011 decision in relation to the Veteran's claim for entitlement to service connection for hearing loss is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 6. Evidence received since the December 2011 decision in relation to the Veteran's claim for entitlement to service connection for a tinnitus is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 7. The criteria for an effective date prior to April 4, 2013 for the assignment of a 50 percent disability rating for service-connected PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 8. The criteria for a rating of 70 percent, but no higher, for PTSD, from April 4, 2013 to March 7, 2018, have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9434 (2017). 9. The criteria for a rating in excess of 70 percent, for PTSD, from March 7, 2018, are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, DC 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen The Veteran claims that he has back, bilateral knee, hearing loss, and tinnitus disorders that were either incurred in or otherwise due to service or, in the alternative, were caused or aggravated by a service-connected disability. His claims for these disabilities were previously denied. The Veteran had one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision became final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a) (2018). In a March 2010 determination, the RO denied the claims of entitlement to service connection for back, bilateral knee, hearing loss, and tinnitus. The Veteran failed to appeal the determination and the decision became final. In August 2011, the Veteran submitted an application to reopen the claims for service connection for hearing loss and tinnitus, which was denied in a December 2011 rating decision. The Veteran, again, failed to appeal the determination. As such, the December 2011 rating decision ultimately became final. 38 C.F.R. § 20.1103 (2017). See 38 C.F.R. § 20.1100. As a result, the claims of entitlement to service connection for back, bilateral knee, hearing loss, and tinnitus may now be considered if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered new if it was not of record at the time of the last final disallowance of the claim. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Finally, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The March 2010 RO decision denied the back, knee, and tinnitus claims on the basis that diagnosed back, knee, and tinnitus disorders were not incurred in or aggravated by service. The rating decision also denied the Veteran’s claims of hearing loss finding that the evidence failed to show that disability. The December 2011 RO decision denied the Veteran's application to reopen the claims of entitlement to service connection for hearing loss and tinnitus. At the time of March 2010 and December 2011 denials, the record included the Veteran's service treatment records, his original claims, multiple VA examinations, and various private and VA treatment records. Since the March 2010 and December 2011 denial, more recent VA treatment records have been added to the file. Additionally, the Veteran, his representative, and his wife have submitted letters supporting the Veteran’s claims. The Board finds that the evidence submitted since the March 2010 RO decision with respect to the back and knee disorders and since the December 2011 rating decision with respect to the hearing loss and tinnitus disorders is cumulative, the claims are not reopened. Pursuant to the Court's holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the claims should be reopened, the Board concludes that the above evidence is not new and material; rather the evidence is cumulative. At the time of the prior decisions, the record included the Veteran's assertions that his low back, knee, and tinnitus disorders were incurred as the result of service and that he had current hearing loss. Although the Veteran's reports are presumed credible, the reports and evidence received since that time are entirely cumulative of such claims. The new documents do not relate to an unestablished fact necessary to substantiate the claims in this Veteran's case. As such, the evidence is essentially cumulative of that of record at the time of the March 2010 decision with respect to the back and knee claims and the December 2011 rating decision with respect to hearing loss and tinnitus. The Court, in Shade, has established that there is a low bar to reopening a claim. However, that low bar is not met with respect to either of the above issues. In the absence of new and material evidence, the application to reopen the claims are denied. Earlier Effective Date Except as otherwise provided, the effective date of a rating and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. With regard to the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The increase in disability must have occurred during the one year period prior to the date of the Veteran's claim in order to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). In this case, the Veteran contends that he is entitled to an effective date prior to April 4, 2013 for the assignment of a 50 percent disability rating for his service-connected PTSD. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the currently assigned effective date is appropriate. Historically, the RO granted service connection for PTSD and assigned a 10 percent evaluation, effective November 2, 2009. In April 2013, the Veteran filed a claim for an increased rating for his service-connected PTSD. In a June 2013 VA progress note, the Veteran requested services for his service-connected PTSD. In a July 2013 VA progress note, the physician noted the Veteran had not been seen since May 2010. The Veteran underwent a VA examination in January 2014. Therefore, the first medical evidence that establishes entitlement to an increased rating is a June 2013 VA progress note. As such, the date of claim is April 4, 2013, and the date entitlement arose is June 20, 2013, the date of the VA progress note. Therefore, the later of the two dates is the date of the VA progress note and according to the pertinent legal criteria would be the assigned effective date of the award of the 50 percent rating. However, the AOJ assigned April 4, 2013, the date of claim, as the effective date of increase and the Board will not disturb that determination. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later, and based on the facts, no effective date for the award of the 50 percent rating for PTSD earlier than April 4, 2013, is assignable; the claim for an earlier effective date must be denied. Increased Rating 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. In general, when 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). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 of adjustment during periods of remission. The rating agency shall assign a rating 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). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran contends that he is entitled to a higher evaluation for his service-connected psychiatric disability. He is currently rated as 50 percent disabling from April 4, 2013 to March 7, 2018 and 70 percent disabling thereafter for PTSD under 38 C.F.R. § 4.130, DC 9434-9400. Under the General Rating Formula, a 50 percent rating is assigned when there 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; in difficulty establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Id. A 100 percent rating is warranted when there is evidence of 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. Id. When determining the appropriate disability rating to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms result in any occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term such as in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to ward a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms. A veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. During a January 2014 VA examination, the examiner described the severity of the Veteran’s impairment as occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran’s mental health symptoms are moderate in severity and result in moderate functional impairment. His social functioning is quite poor and he is distant even from those he maintains relationships with. Interactions with strangers and/or coworkers are often strained an uncomfortable. The Veteran’s difficulty in social settings has led to reduced functioning in the seasonal work positions he has held in the last two years. Although the Veteran is capable of functioning occupationally, he would most likely do best in a fairly isolative position that allowed him a good degree of independence and reduced interaction with coworkers and customers. The Veteran’s quality of life is poor at present, and his symptoms lead to a large amount of discomfort for him. The Veteran lives with his wife and two daughters. He recently completed coursework for a Bachelor’s degree though both in-person and online courses. The Veteran described being distant/cut off from others, even his wife. He complained of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and ongoing suicidal ideation. Upon mental status evaluation, the Veteran was oriented and dysthymic with normal speech, thought content free of delusions, good attention and concentration, fair insight, and intact judgement. In an April 2014 statement, the Veteran endorsed symptoms of anger, anxiety, chronic sleep impairment, danger of hurting self or others, delusions, denial, depression, difficulty making decisions, flashbacks, guilt, inability to make and keep friends, inappropriate behavior, memory loss, neglect of personal hygiene, neglect of family, nervousness, no friends, overtly concerned with personal hygiene, panic attacks, problems with communication, problems getting along with people, suicidal feelings or thoughts, and suspiciousness. In a May 2014 statement, the Veteran’s representative indicated the Veteran does not have social relationship. He has two small children, but he has issues of lack of involvement. He has some obsessive behaviors such as checking doors and windows and washing hand frequently. He is easily startled by loud noises and he reported these types of noises cause panic attacks. He thinks about suicide on the average of once a week. Last summer he attempted suicide by going into the street with the intent of being struck by a car. He was stopped by a neighbor. He reports that he does not sleep well, sleeping lightly. He reports that he is continuously depressed at some level. He reported difficulties with unprovoked irritability with violence. He states that until a year ago, he was a "wife beater." He was in a fight last fall. His irritability is controlled by isolating himself-that is, he does not go places and stays at home so that he will not get into an altercation. Other symptoms he cited included decreased motivation and having to be reminded to attend to his personal hygiene. He may wear his clothes for a week without changing. The Veteran’s wife submitted a statement in September 2014. She stated the Veteran does not keep up with his personal hygiene. He has abused her and has been in numerous altercations outside the home. He has trouble remembering where he is going. He forgets the names of his children. He stays awake at least 18 to 20 hours a day. He gets violent or withdrawn if he does not understand someone or feels he is not understood. He has run out into traffic more than a few times to hurt himself. During an October 2014 VA examination, the examiner described the Veteran’s insomnia disorder as manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Veteran reported he was actively seeking employment, but has not interviewed for any positions. He denied any significant changes in his home life and indicated his wife was pregnant. The Veteran arrived on time, appropriately dressed and responded appropriately throughout the examination. The examiner noted no obvious difficulties with speech, concentration, gait, orientation or fund of knowledge were observed. Veteran appeared to provide an accurate representation of his current mental health status. The Veteran underwent an additional VA examination in December 2015. However, the examiner found significant concerns regarding the credibility of the Veteran’s self-reported psychological symptoms. During an October 2016 VA examination, the examiner described the Veteran’s PTSD as manifested by occupational and social impairment with reduced reliability and productivity. The Veteran reported he has one friend in St. Louis, but has had several friends in the past. He enjoys family activities including taking his kids to the park. Occupational problems reported include poor social interaction, difficulty concentrating, forgetfulness, assignment of different duties, inappropriate behavior, and increased tardiness/absenteeism. The Veteran reported he was reprimanded for not getting along with coworkers. The Veteran started mental health treatment including couples and group therapy, as well as individual therapy. The Veteran endorsed symptoms of anxiety, suspiciousness, and mild memory loss. Upon mental status evaluation, the Veteran’s appearance and dress were appropriate. His speech was normal. The Veteran denied having any delusions, obsessions, or suicidal/homicidal ideations. He denied any hallucinations. He stated his mood was “okay” and affect was congruent with mood. He was oriented and his insight was fair. In an March 2018 disability benefits questionnaire (DBQ), the examiner reported the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas. The Veteran stated he is still married, but marriage is not good. His three children live with him; however, he has limited interactions with them. He watches television but denies participating in any social or extracurricular activities. His wife makes sure he eats, gets out of bed in the morning and picks out his clothes for him. He has remained unemployed since 2011 or 2012. He denied any attempts to maintain employment since his last review, because he is physically and mentally tired all of the time. He stated he often forgets things on a near daily basis, and he doesn't drive. He described his current mental health concerns as being physically and mentally tired every day. He denied a history of suicide attempts since his last review; however, he has passive suicidal ideation on a near weekly basis but denied any ongoing specific plans or intent. He complained of night terrors. The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, impaired impulse control, and neglect of personal appearance and hygiene. The Veteran appeared casually dressed and appropriately groomed. He maintained appropriate eye contact and was cooperative and pleasant while being engaged in the interview. Speech appeared at a normal rate, rhythm and volume. Mood was dysthymic and affect was congruent and appropriate to the situation and discussion. No abnormal psychomotor activity was noted. Thought processes appeared logical and goal directed and no delusions, obsessions or compulsions were noted in thought content. He reported on-going nightmares. He described his depression as not wanting to do anything, low appetite, low energy, and fatigue, mentally slower, difficulty focusing on tasks beyond watching television or playing games on his phone, unable to drive, memory loss, fighting in his sleep, reliving negative experiences that happened in the military, nightmares, and low distress tolerance. Additional VA treatment records during this period reflect that the Veteran's psychiatric symptoms included chronic sleep impairment, isolation, hypervigilance, startle response, irritability, and suicidal thoughts. Upon review of the evidence of record, the Board finds that the Veteran's psychiatric disability more nearly approximates the criteria required for a 70 percent disability, but no higher, from April 4, 2013 to March 7, 2018. As noted above, the evidence of record reflects that the Veteran had suicidal ideation; depressed mood; and difficulty with intimate and social relationships. Additionally, he had feelings of guilt, sadness, isolation, and a lack of energy and interest. The Court recently reiterated, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). As such, the Board finds that the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected psychiatric disability. See id. at 20 (the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). The Board has also considered whether the evidence supports a rating of 100 percent at any point during the appeals period. The Veteran's symptoms and overall level of impairment do not, at any point, more nearly approximate the total occupational and social impairment required for a 100 percent rating. The Veteran maintained a relationship with his family, albeit troubled; remained oriented to time and place; and was able to perform activities of daily living. The Board notes that the Veteran complained of delusions in an April 2014 statement; however, the Veteran specifically denied delusions in October 2016 and March 2018 examinations. The Veteran’s wife stated the Veteran will forget the names of his children; however, the March 2018 DBQ found only mild memory loss. There were no other symptoms listed in the criteria for a 100 percent rating. For the foregoing reasons, an increased rating of 70 percent, but no higher, from April 4, 2013 to March 7, 2018, for PTSD with depression is warranted. However, a disability rating in excess of 70 percent from March 7, 2008 is not warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND The Veteran asserts service connection for sleep apnea is warranted. A July 2005 private home sleep test found no significant disordered breathing, but indicated a home test does not rule out the presence of sleep apnea. An April 2016 statement, a nurse practioner indicated that a diagnosis of sleep apnea could not be made without resorting to speculation. He noted a sleep study should be repeated in a lab. The Board finds a remand is necessary in order to provide the Veteran an opportunity for a sleep study. Finally, because a decision on the remanded issue of entitlement to service conneciton for OSA could significantly impact a decision on the issue of entitlement to an earlier effective date for TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to an earlier effective date for TDIU is required. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician obtain an opinion as to the nature and etiology of any sleep apnea; specifically, the Veteran should be provided an opportunity to participate in a sleep study. Thereafter, the examiner must opine whether any diagnosed sleep apnea is at least as likely as not related to an in-service injury, event, or disease. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel