Citation Nr: 18150107 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-22 790 DATE: November 14, 2018 ORDER A disability rating in excess of 70 percent for an acquired psychiatric disability is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s acquired psychiatric disability was manifested as occupational and social impairment with deficiencies in most areas, with impaired impulse control, violent outbursts, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships, but without more severe manifestations such as hallucinations, delusions, grossly inappropriate behavior, gross thought process or communications deficits, disorientation, and significant cognition and memory deficits that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 100 percent for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1997 to March 2000, to include service in Southwest Asia. He was granted service connection for a psychiatric disability characterized as depressive disorder in a February 2014 rating decision, and was assigned a 50 percent rating effective January 10, 2013. In a February 2016 remand, the Board assigned a 70 percent rating for that time period. The Veteran asserts that his condition warrants a 100 percent rating. In addition to depressive disorder, the Veteran has been diagnosed with posttraumatic stress disorder (PTSD). The Board notes that while there is no prohibition against a veteran being granted service connection for more than one psychiatric disability, the same manifestations cannot be rated under different diagnoses. 38 C.F.R. § 4.14 (2017). Here, the Veteran’s initial service connection claim encompassed all of his diagnosed psychiatric disabilities and, thus, they shall be referred to herein as an acquired psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board may consider whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 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. The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411 and has been assigned a 70 percent rating. See 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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 evaluation is warranted where 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 own name. 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). The Board finds that the evidence of record reflects both that the Veteran has had symptoms listed in the criteria for a 70 percent rating and that his symptoms have caused deficiencies in many areas. At a January 2014 VA examination, he was found to be experiencing a depressed mood, anxiety, and chronic sleep impairment. The record noted that he had been working for 13 years at that point, and had been married for the same. He displayed disturbances of motivation and mood, with difficulty establishing and maintaining effective work and social relationships. In a March 2014 letter to VA, the Veteran described feeling angry, tired, anxious and nervous. He described problems at work due to his service-connected psychiatric disability. Elsewhere in the record, lay statements from co-workers revealed instances of unprovoked irritability. Statements from the Veteran describe nightmares, increased vigilance, violent outbursts at home, and anxiety. VA mental health treatment notes indicate the Veteran experienced depression and anger, but no hallucinations, paranoia, memory loss or recent suicidal ideation. The Veteran was consistently found to be cooperative and oriented to person and place. In April 2016, a VA examiner found the Veteran was experiencing depression, crying spells, low self-esteem, a diminished sense of pleasure, and suicidal ideation without plan or intent. He experienced disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances. In a June 2016 VA examination report, a VA psychologist found the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He reported symptoms such as depressed mood, anxiety, panic attacks, sleep impairment, mild memory loss, flattened affect, an inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, and impaired impulse control such as unprovoked irritability. He was oriented times 3 without psychotic symptoms. Suicidal ideation was fleeting, but without plan or intent. The 100 percent rating criteria provides example features of mental impairment such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. None of these symptoms have been reported by the Veteran or noted by clinicians and examiners during the appeal period. The VA examination reports and VA treatment records have consistently reflected that the Veteran has generally been oriented in all spheres with adequate thought process and communications, with mild memory loss noted in April and June 2016. The Veteran has consistently denied hallucinations. There had never been any report or signs of persistent delusions, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, and own name. The record shows that the Veteran had been married for several decades to his wife, and had a good relationship with his two children. He enjoyed hobbies such as hunting and fishing. As such, there is no evidence of total social impairment. Overall, the Board finds that the bulk of the evidence, consisting of multiple mental health treatment records and VA mental health examinations, supports a finding that the Veteran’s symptoms, as a whole, more closely approximate the criteria for his current disability rating of 70 percent. The Board notes that the United States Court of Appeals for Veterans Claims has recently provided direction on the interpretation and the application of the factors for evaluation of the several ratings in § 4.130. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Per Bankhead, the Board cannot confine its analysis only to identifying the presence of certain symptoms to determine the appropriate rating in 38 C.F.R. § 4.130, but also must draw fact-based conclusions as to whether those symptoms have caused the level of occupational and social impairment associated with a particular disability rating. See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Indeed, the Board acknowledges that the Veteran’s suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. However, suicidal ideation, which is generally indicative of a 70 percent evaluation, differs from a risk of self-harm, the persistent danger of which is generally indicative of a 100 rating. Bankhead, supra. Here, the Veteran’s suicidal ideation is reported as “fleeting,” which the Board finds falls short of a “persistent” nature, and not resulting in the frequency, duration, and severity so as to render the Veteran totally socially and occupationally impaired. Thus, the Board finds that at no time during the rating period on appeal has the Veteran’s acquired psychiatric disability warranted a rating in excess of 70 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND In its February 2016 remand, the Board requested a new VA examination of the Veteran, concerning his claim for service connection for OSA. The examiner was asked to address, in detail, the Veteran’s reported sleeping difficulties, his Gulf War service, and whether OSA was caused or aggravated by his service-connected psychiatric disabilities. In response, a June 2016 examiner merely copied the conclusions made by the January 2014 VA examiner, concerning OSA. The Board notes that it found those conclusions inadequate in its February 2016 remand. Thus, as the June 2016 VA examiner did not comply in any way with the Board’s instructions, a responsive and detailed medical opinion is necessary to resolve the Veteran’s claim. See Stegall v. West, 11 Vet. App 268 (1998) (a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Schedule the Veteran for a VA Gulf War examination to determine the current nature, onset, and etiology of his sleep apnea. The claims file should be made available to and reviewed by the examiner. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, and undertake any indicated studies, to include examination if warranted. It should be noted that the Veteran has reported various sleeping difficulties and is currently service-connected for depressive disorder and chronic fatigue syndrome. The examiner is asked to address each of the following questions: a) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? b) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. c) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstances of his service, specifically including environmental exposures during service in Southwest Asia during the Persian Gulf War? d) If not directly related to service on the basis of the above questions, is any medical condition proximately due to, the result of, or caused by any service-connected disabilities, specifically including the depressive disorder and chronic fatigue syndrome. Please consider the Veteran’s associated medications for his service-connected disabilities. e) If not caused by another service-connected disability, has any disorder been aggravated by his service-connected disabilities? Please consider the Veteran’s associated medications for his service-connected disabilities. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel