Citation Nr: 18153963 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 12-23 818 DATE: November 28, 2018 ORDER Entitlement to an initial higher rating for migraine headaches is dismissed. Entitlement to service connection for right knee disorder is dismissed. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, claimed as secondary to posttraumatic stress disorder(PTSD), is denied. Entitlement to a rating in excess of 30 percent for PTSD is denied. FINDINGS OF FACT 1. In a July 2018 rating decision, service connection for a right knee disorder and an increased rating of 50 percent for migraine headaches was granted, resulting in a full grant of the benefits sought on appeal. 2. The Veteran’s chronic sleep impairment is included in her PTSD rating; she does not have a separate sleep disorder. 3. Throughout the appeal period the Veteran’s PTSD symptoms have been manifested by subjective complaints of anxiety, sleep impairment, hypervigilance, and irritability, but with good family relationships; objective findings include being alert and oriented, exercising good judgment and insight, thoughts and speech were clear; and she was well groomed or neatly dressed. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a right knee disorder is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. 2. The claim of an initial higher rating for migraine headaches is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. 3. The criteria for service connection for a sleep disorder, as secondary to service-connected PTSD, have not been met. 38 U.S.C. 1110, 5103(a), 5103A, 5107; 38 C.F.R. 3.303, 3.310. 4. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1996 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, VA. Jurisdiction is now with the RO in Providence, Rhode Island. In June 2017, the Veteran testified at a Board hearing in Washington, D.C. before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2017, the Board remanded the appeal for further development. The Board notes that the Veteran filed a Notice of Disagreement (NOD) with respect to the August 2018 denial of entitlement to service connection for a bilateral ankle and bilateral hip disorder. In October 2018, the RO acknowledged receipt of the NOD and is taking additional action. As such, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the NOD has been recognized and additional action on the NOD is pending at the RO, Manlincon is not applicable in this case. Dismissed Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. In a July 2018 rating decision, subsequent to a Board remand, service connection for a right knee disorder and an increased rating of 50 percent for migraine headaches was granted—the maximum rating for such disability. As such represents a full grant of said issues, they are no longer in appellate status, and there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Therefore, the appeals seeking entitlement to service connection for a right knee disorder and a higher initial rating for migraine headaches must be dismissed. Service Connection-Sleep Disorder The Veteran contends that she has a sleep disorder caused by her service-connected PTSD. Service connection may be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (“two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology”). However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes with different ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate. Id. Here, a sleep apnea disability benefits questionnaire was completed in September 2017. It was noted that the Veteran had very disruptive sleep until recently, with disturbing nightmares, daytime anxiety, sleepiness and snoring. She reported that her sleep problems markedly improved with Trazodone. The examiner noted that she did not require use of a breathing assistance device or use of a continuous positive airway pressure machine, nor were there any findings, signs or symptoms attributable to sleep apnea. Further, it was noted that the Veteran scored a zero on the standard Epworth Sleepiness scale, indicating no symptoms of sleep apnea. The examiner explained that the protocol was to do a sleep study only when there is screening evidence of sleep apnea, which was not present in the Veteran. The examiner further found that the Veteran’s symptoms of sleep impairment were due to her PTSD, and noted that the Veteran’s psychiatrist made similar findings. Based on the above, the Board finds that the Veteran’s chronic sleep impairment is a symptom of her service-connected PTSD and is not a separately diagnosed disorder. In this regard, the Veteran has not been diagnosed with a sleep disorder, other than her chronic sleep impairment. The Board recognizes the Veteran’s contention that she has a sleep disorder, to include sleep apnea. The Veteran is competent to attest to lay-observable symptomatology; however, she is not competent to diagnose herself with a sleep disorder, to include sleep apnea. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Board assigns greater probative value to the September 2017 examiner, who found that there were no findings suggestive of sleep apnea, and indicated that her current sleep impairment was a symptom of her PTSD. The record indicates that the Veteran’s current sleep impairment is already contemplated in the rating assigned to her service-connected PTSD. The RO has already considered symptomatology, such as chronic sleep impairment, when rating the Veteran’s PTSD. Indeed, chronic sleep impairment is listed as a sign and symptom of an evaluation for PTSD under Diagnostic Code 9411. See 38 C.F.R. § 4.130. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a sleep disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a sleep disorder must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Increased Rating-PTSD The Veteran’s PTSD is currently rated at 30 percent under DC 9411 of the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent rating is warranted for 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 evaluation is warranted for 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 in establishing and maintaining 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. During the pendency of the claim, the Veteran has had symptoms most generally consistent with a 30 percent rating, as well as the impairment indicated by the criteria for a 30 percent rating. Here, an October 2010 VA psychiatric treatment note reflects that the Veteran reported having nightmares, night sweats and an irritable mood. She reported taking Prazosin and Citalopram, which she said was helpful, and stated that her PTSD symptoms and mood were better than before. She reported living with her two children and her second husband, with whom she reported having a good relationship. She appeared casually dressed and was cooperative. She was noted to be pleasant and her mood was good. Her speech was fluent and her affect was mood congruent and euthymic. Her thought was logical, attention and concentration were good, and her insight and judgment were fair. Depressed mood, delusions, hallucinationS, and homicidal/suicidal ideations were denied. The Veteran underwent a VA psychiatric examination in February 2011, at which time she lived with her husband and children. She reported working full-time, and that she was able to adequately maintain her job duties. She reported she is able to interact adequately in the work place, but becomes somewhat irritable and withdrawn when she is experiencing increased anxiety. She denied any legal or substance abuse problems. On physical examination, she was clean, well-groomed and casually dressed. Her speech was clear, goal-directed, spontaneous, and of normal pace and volume. Her thought content was rational, and she had no history of hallucinations, delusions or mania. She denied suicidal ideation. Her insight and judgment were fair and adequate. She was pleasant during the interview, however, became distraught when discussing events related to her stressor. She reported thinking about her stressor two to three times per week and becoming anxious for quite some time when she does so. She also reported nightmares two to three nights per week, and that she only sleeps about five hours a night. The Veteran was again examined in January 2017. At such time, she was divorced, had two adult children and was engaged. She reported being involved in raising her fiancé’s seven-year-old child. She said she maintains contact with her family members and has a loving relationship with her family and a good relationship with her friends. She stated she enjoys engaging in outdoor activities such as bike rides, as well as crocheting. The Veteran reported that, at times, she has difficulty at work, including when experiencing anxiety, poor concentration, paranoia and impulsive behavior, such as confronting pedestrians who are taking pictures of her employment building. She as endorsed symptoms of hypervigilance, suspiciousness and paranoia. She stated she can become easily overwhelmed. She also reported restless sleep, waking three to four times during the night and having nightmares. She stated she takes Celexa to manage her symptoms. Upon examination, the Veteran’s mood was anxious with congruent affect. She maintained adequate eye contact, and her speech was spontaneous with normal rate and tone. She was oriented to person, place, time and purpose. Her thought processes were logical and coherent. Insight and judgment were intact. No hallucinations or delusions were present. No obsessions, compulsions or phobias were evidenced. Suicidal or homicidal ideations were not observed. She presented as appropriately dressed with adequate hygiene. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment and impairment of short and long-term memory. The examiner summarized the Veteran’s level of impairment as 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. During the June 2017 Board hearing, the Veteran described experiencing panic attacks anytime she went outside to do something. A June 2017 note reflects that the Veteran reported her anxiety had leveled out and that she was doing much better. She stated she would cry off and on a couple of times a week, and that she was sleeping well with the use of Trazodone, but without it her sleep was very restless and she has frequent nightmares. She stated she was not isolating herself socially and that she had no suicidal ideation. Regarding her memory, she said she has to write things down. The Veteran stated that her mood was much better, and that her hypervigilance had improved. Upon mental status examination, she was cooperative, pleasant and had good eye contact. She was realistic and oriented to person, place and time. She was clean and well-groomed and her motor activity was within normal limits. Her affect was appropriate and full range, and her speech was audible, fluent, organized and goal directed. She was attentive and her memory was intact. Perceptual aberrations were absent and her thought process and content were within normal limits. Judgement, insight and impulse control were good. Suicidal/homicidal ideation was absent. Her PTSD was assessed as “improving.” In September 2017, the Veteran underwent another examination. She was now remarried and living with her husband and stepson. She reported having a close relationship with her family of origin and some extended family, and that she saw them monthly. The Veteran stated that she and her husband had a small farm, and that she enjoys taking care of the plants and spending time with their dog. The Veteran reported working full-time, and that she missed time from work due to migraines and knee pain. She reported taking Citalopram and Trazodone, which she said helped with her anxiety and sleep impairment. She stated that, for the last two years, she has not wanted to go out as much due to increased anxiety and safety concerns. She reported that she is hypervigilant and watches everyone for threatening behavior. She also reported difficulty with memory and some irritability toward her husband on occasion. She said her mood was fairly steady as long as she took her medication. She denied suicidal/homicidal ideation. Upon examination, she was noted to be well-groomed, and was alert, fully oriented and cooperative. Her mood was anxious and her affect was anxious and tearful. Her speech and thought content were within normal limits. Her thought processes were logical and goal-directed, and her memory and attention appeared grossly intact. Her insight and judgment were also intact. There was no evidence or report of delusions or hallucinations and she denied any current suicidal or homicidal ideation. The examiner noted symptoms of depressed mood, anxiety, suspiciousness and chronic sleep impairment. The examiner summarized the Veteran’s level of impairment as 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. After a review of the record, the Veteran’s PTSD most nearly approximates a 30 percent rating throughout the appeal period, and a higher rating is not warranted. In this regard, the medical evidence reflects that she complained of, and/or manifested symptoms such as anxiety and sleep impairment. She has also reported hypervigilance, irritability and forgetfulness. Nonetheless, despite the PTSD symptoms noted above, the medical evidence also reflects that she was generally functioning satisfactorily throughout the evaluation period. For example, all of the medical evidence reflects that she was alert and oriented, exercised good judgment and insight, thoughts and speech were clear, and that she was well groomed or neatly dressed. Moreover, no clinician has described the Veteran’s occupational and social impairment as more severe than an occupational and social impairment 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). Despite some failed marriages, during all examinations, she reported good family relationships, including with her current spouse, her children and extended family. With respect to social relationships, the Veteran stated that she has supportive friends and typically does not isolate herself or exhibit avoidant behavior in the workplace. Finally, the medical evidence shows that the Veteran consistently denied having any suicidal or homicidal ideation, hallucinations or delusions, nor is there any evidence of acts of violence towards property or persons during the evaluation period. Further, though the Veteran stated she has frequent panic attacks when she has to go outside to do something, she has also reported that her symptoms are well-managed by her medication, and that it has leveled out her anxiety levels. Additionally, she does not have impaired judgment, impaired abstract thinking or circumstantial, circumlocutory or stereotyped speech. In sum, the medical evidence shows that any impairment due to PTSD is compensated for by the current 30 percent rating. At no time during the evaluation period has the PTSD disability picture reflected occupational and social impairment with reduced reliability and productivity, deficiencies in most areas, or total social and occupational impairment, due to any of her PTSD symptoms. Therefore, PTSD most nearly approximates a 30 percent rating. As such, a higher rating is not warranted, and the appeal is denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., Counsel