Citation Nr: 18148577 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-43 546 DATE: November 7, 2018 ORDER The application to reopen the claim of service connection for sleep apnea is denied. The application to reopen the claim of service connection for a left knee disability is denied. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder is denied. FINDINGS OF FACT 1. In an April 2007 rating decision, the RO denied a claim to reopen service connection for sleep apnea. 2. The evidence received since the April 2007 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 3. In a March 2005 rating decision, the RO denied a claim to reopen service connection for a left knee disability. 4. The evidence received since the March 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability. 5. Post-traumatic stress disorder is manifested by depressed mood, anxiety, panic attacks occurring weekly or less often, and difficulty adapting to stressful circumstances, all resulting in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying the claim to reopen service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has not been received with respect to the claim of service connection for sleep apnea; therefore, the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The March 2005 rating decision denying the claim to reopen service connection for left knee disability is final. 38 U.S.C. § 7105 (2012; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 4. New and material evidence has not been received with respect to the claim of service connection for left knee disability; therefore, the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for a rating in excess of 70 percent for post-traumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. 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. 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. See 38 C.F.R. § 3.156(a). 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). When assessing whether new evidence is material, the threshold is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence for service connection for sleep apnea In an April 2007 rating decision, the RO denied a claim to reopen the previously denied claim of entitlement to service connection for sleep apnea. The RO cited the lack of evidence of manifestations of sleep apnea during service. And the RO notified the Veteran at his then-current address of record. Neither a notice of disagreement nor new and material evidence was filed within one year of the decision, so the decision became final. In October 2014, the Veteran submitted another claim to reopen service connection for sleep apnea. The record does not contain material evidence pertaining to this claim received since the prior final decision in April 2007. As such, the claim to reopen must be denied. 2. New and material evidence for service connection for a left knee disability In a March 2005 rating decision, the RO denied a claim to reopen the previously denied claim of entitlement to service connection for left knee disability. The RO cited the lack of evidence of manifestations of left knee disability during service. And the RO notified the Veteran at his then-current address of record. Neither a notice of disagreement nor new and material evidence was filed within one year of the decision, so the decision became final. In October 2014, the Veteran submitted another claim to reopen service connection for left knee disability. The record does not contain material evidence pertaining to this claim received since the prior final decision in March 2005. As such, the claim to reopen must be denied. 3. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder In an unappealed October 2012 rating decision, the RO granted service connection for PTSD as 30 percent disabling effective October 4, 2004. On October 31, 2014, the Veteran filed a claim for increased rating for this disorder. In the March 2015 rating decision on appeal, the RO assigned a 70 percent rating effective the date of claim. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The Veteran is rated under Diagnostic Code (DC) 9411. This DC is addressed under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under this provision, ratings of 10, 30, 50, 70, and 100 percent are authorized. Inasmuch as PTSD has been rated as 70 percent disabling during the appeal period, the Board will limit its analysis to whether a 100 percent rating has been warranted at any time during the appeal period. A 100 percent rating is warranted under DC 9411 when there is “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 name.” Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Veteran reported trouble functioning in any social situations and stated that he stays home because he is uncomfortable around others. The Veteran received a VA examination for his PTSD in February 2015. Upon examination the VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner noted that the Veteran’s behavior was pleasant, cooperative, and unremarkable. The Veteran reported a stable marriage of 15 years and a small social circle consisting of other veterans. The examiner also noted that the Veteran reported road rage. Overall the examiner concluded the Veteran had occupational and social impairment with occasional decrease in work efficiency. The Veteran did not submit any treatment records regarding his condition during the appeal period. Based on the evidence of record, the Board finds that the Veteran’s symptoms most closely approximate the criteria for a 70 percent rating. The Veteran exhibits near constant depression and anxiety, chronic sleep impairment, and difficulty adapting to stressful circumstances. He has only a small circle of friends, with whom he does not socialize frequently. A 100 percent rating has not been warranted, however. The evidence does not support a finding that the Veteran’s psychiatric problems have caused total occupational and social impairment. The preponderance of the evidence has indicated that the Veteran’s thought process and communication has been largely unimpaired. Despite evidence of his anger, the evidence indicates that the Veteran has been fully oriented, in control, and coherent throughout the appeal period. The evidence has shown anger and irritability, but not to such an extent that the Veteran has been in persistent danger of hurting himself or others. The evidence shows that he has been able to perform activities of daily living to include personal hygiene requirements. The evidence has generally shown that he has had impaired but intact memory, intact judgment, and the capacity for insight. This is all clearly documented in the February 2015 VA report. In short, despite the Veteran’s symptoms, he has not exhibited the type of emotional and cognitive impairment reserved for a total rating. See 38 C.F.R. § 4.130, DC 9411. In sum, the preponderance of the evidence is against the assignment of a rating in excess of 70 percent since the claim for increased rating on October 31, 2014. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The Board further notes that a rating in excess of 30 percent was unwarranted in the one-year period prior to the claim for increased rating. The record contains no evidence dated during this period indicating a worsening of PTSD symptoms. See 38 C.F.R. § 3.400(o)(2). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel