Citation Nr: 18155115 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 11-16 024 DATE: December 3, 2018 ORDER New and material evidence has been submitted, and the claim of entitlement to service connection for hypertension is reopened. Entitlement to the assignment of an initial rating of 70 percent for the entire appeal period under review (i.e. from October 22, 2008 to September 16, 2014) for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for obstructive sleep apnea, claimed as secondary to service-connected PTSD, is remanded. Service connection for hypertension, claimed as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. In a May 2008 rating decision, the regional office (RO) denied the Veteran’s service-connection claim for hypertension. The Veteran did not appeal, nor did he submit new and material evidence within one year of this determination. 2. Since the May 2008 rating decision denying the Veteran’s service-connection claim for hypertension, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. 3. For the entire appeal period under review, the Veteran’s PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The RO’s May 2008 denial of the claim for service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The criteria for a rating of 70 percent for the entire appeal period under review for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1968 to March 1970. In an April 2017 decision, the Board granted a 50 percent rating for the Veteran’s PTSD prior to September 17, 2014 and denied a rating in excess of 70 percent after that date. In May 2018, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision, which vacated that portion of the Board decision that denied a rating higher than 50 percent for PTSD for the period prior to September 17, 2014. Notably, the Veteran did not appeal the Board’s denial of a rating higher than 70 percent from September 17, 2014, and the Court did not disturb this determination. Thus, the sole issue before the Board with respect to his PTSD rating is whether a rating higher than 50 percent is warranted prior to September 17, 2014. The Board observes that in April 2018, the Agency of Original Jurisdiction awarded the Veteran a TDIU as due to PTSD alone, effective the date he stipulated on his application he stopped working full time, January 25, 2016. The Veteran has not disagreed with this effective date. In support of his current appeal, the Veteran’s attorney has specifically asserted that the Board should find that the Veteran’s PTSD more closely approximated occupational and social impairment with deficiencies in most areas throughout the period on appeal, and grant the Veteran a 70 percent rating for this PTSD effective from October 22, 2008. For the reasons discussed below, the Board agrees that a 70 percent rating is warranted on a schedular basis for the entire period. This represents a full grant of the benefit sought, as limited by the Veteran’s attorney in his November 13, 2018 brief. The Veteran’s hypertension and sleep apnea claims were perfected and certified to the Board while his PTSD claim was pending with the Court. The appeals have bene merged and will be discussed below. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For applications to reopen filed after August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s service-connection claim for hypertension, claimed as secondary to the Veteran’s service-connected diabetes mellitus type II, in a May 2008 rating decision. The Veteran did not submit any new and material evidence or a notice of disagreement within a year of that decision. Thus, the May 2008 rating decision became final as to the claim of service connection for hypertension. 38 U.S.C. §7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran filed a new claim for service connection for hypertension, claimed as secondary to his service-connected PTSD, in September 2015. Evidence received since the May 2008 rating decision includes an April 2016 statement from the Veteran’s private physician wherein the physician wrote that “due to heightened anxiety levels and an increased adrenaline response to anxiety, BP [blood pressure] will increase as anxiety levels increase.” The evidence also includes a July 2016 VA opinion indicating that while blood pressure does rise as anxiety levels increase as noted by the Veteran’s private physician, such is not a sustained situation. Taken together, the conflicting opinions relate to an open question of nexus, and as discussed below, trigger VA’s duty to assist. The evidence is new, material, and serves to reopen the claim. PTSD Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. PTSD is evaluated under VA’s General Rating Formula for Mental Disorders. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces 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 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 rating is warranted 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 own name. As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall 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. See 38 C.F.R. § 4.126(a). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Facts The Veteran’s PTSD is currently rated 50 percent disabling from the effective date of the award of service connection, October 22, 2008 to September 16, 2014. In June 2008, the Veteran was diagnosed with PTSD by his VA primary care physician, who prescribed the Veteran medication for his anxiety and depression. In August 2008, the Veteran met with a VA social worker and stated that he was always “super alert” and experienced increased hypervigilance. He felt detached from others and said he occasionally got drunk to numb the pain. He said that his marriage to his third wife was very rocky, but that she was forgiving. In an October 2008 VA treatment note, the Veteran expressed that he woke up several times a night due to nightmares about Vietnam. He denied suicidal or homicidal intentions. He underwent a neuropsychological evaluation in October 2008 through VA. He described his mood as “depressed and angry” and reported anxiety related to finances and marital conflict. He said he had experienced occasional thoughts of death in the past, but denied current suicidal ideation, intent, or plan. He was alert and oriented with intact attention. The Veteran underwent a VA PTSD examination in January 2009. He reported that he was a security guard and denied experiencing any reduced time or decreased productivity at his job due to psychiatric symptoms. He said he spent most of his time alone and liked to build model railroads and look at his fish. He reported a close relationship with his three adopted sons and explained that he was socially isolated outside of his family members. Physically, the VA examiner noted that the Veteran’s hygiene and appearance were excellent and appropriate. The Veteran demonstrated excellent concentration and there was no indication of any memory impairment for recent or remote events. The Veteran was congenial and in a good mood with no impairment of thought processes or communication. He reported poor sleep since returning from Vietnam and said he experienced approximately four nightmares a week about Vietnam and fellow servicemen that died in combat. He said that he did not feel totally safe in public and generally felt anxiety. He denied any current suicidal ideation, intent, or plan but noted that he had periods of time when he experienced fleeting suicidal thoughts. He denied ever experiencing auditory or visual hallucinations. The VA examiner found that the Veteran was suffering from mild PTSD and expected a full recovery so long as the Veteran engaged in medication management. In a May 2009 statement to his representative, the Veteran reported that he was extremely irritable and only slept two hours per night. He said he was very suspicious and cautious. He also said that after Vietnam, he became socially isolated and found it difficult to initiate any contact with friends and extended family. He reported that he just wanted to spend time alone and watch television, without having to interact or talk to anyone. He also said that, despite the report of the January 2009 VA examination report, that he struggled at his job insofar as he interacted with coworkers only when absolutely necessary and felt anxious and irritated most of the time. He said he felt extreme anxiousness when he failed to remember a simple incident and felt he was experiencing some memory loss. He also stated that he was afraid to admit to anyone that he had moments of suicidal thoughts, as admitting that to anyone was “impossible” and he was afraid to do so at the VA examination. He explained that his job helped “validate” what self-worth he had left, and felt the need to feel productive on the “outside,” as he felt “empty and worthless” on the inside. In July 2009, the Veteran’s VA social worker wrote a letter on behalf of the Veteran advocating for an increased rating. The social worker diagnosed the Veteran with chronic PTSD with the following symptoms: loss of interest in most activities, withdrawal, avoiding crowds, increased agitation and aggression, road rage, hypervigilance, flashbacks, frequent nightmares, squeezing his arms until they bruised while dreaming, and insomnia. The social worker noted that since retiring, the Veteran had experienced passive suicidal thoughts and an increased irritability in his marriage. In August 2009, the Veteran met his VA social worker and reported that he managed his PTSD by working as a security guard because it kept his mind occupied. Also, the Veteran took his medication and went to his VA social work/therapy meetings. He reported that he drank 3-4 mixed alcoholic beverages several times a week and occasionally got drunk. He said he suffered from daily intrusive thoughts and nightly nightmares related to combat PTSD. In October 2009, the Veteran expressed that he experienced guilt, feeling distant from people, super alertness, a lack of friends, and disturbing memories from Vietnam and his friends that died there. He said that he had suicidal thoughts, but no plan. He said that he had homicidal thoughts, but no plan. In December 2010, the Veteran reported in a VA social work session that he was given the finger while driving, which triggered a flashback that caused him to follow the driver and confront her. He threw the woman’s husband against the car and continued the verbal altercation. He came out of his flashback and left before the police arrived. He said that it was the closest he had come to killing someone since being a police officer. In June 2011, the Veteran’s wife wrote a letter wherein she indicated that the Veteran no longer showed interest in hobbies he once enjoyed and had fits of rage. The Veteran’s treating physician submitted a Disability Benefits Questionnaire (DBQ) in October 2013, wherein he indicated that the Veteran’s PTSD manifested in symptoms including: depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect; difficulty understanding complex commands; impaired judgment; difficulty adapting to stressful situations; and the inability to establish and maintain effective relationships. In a July 2014 VA depression screening, the Veteran reported feeling down, depressed, or hopeless “nearly every day” and said he had little interest or pleasure in doing things. In a corresponding PTSD screening, the Veteran reported that he had nightmares, was constantly on guard, watchful, or easily started, and felt numb or detached from others, activities, and surroundings. Analysis The Veteran contends that a 70 percent rating is warranted for his PTSD prior to September 17, 2014. As noted above, in November 2018 Correspondence, the Veteran’s attorney contended that “the Board should find that the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas throughout the period on appeal, and grant the Veteran a 70 percent rating for his PTSD effective from October 22, 2008.” Herein, the Board finds that a 70 percent rating for the Veteran’s PTSD is warranted. Because this represents a full grant of what the Veteran has requested, the Board finds that the Veteran’s appeal has been satisfied. Indeed, a claimant may “limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law” via “clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition.” See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). In this regard, the Board finds that the Veteran’s PTSD symptoms prior to September 17, 2014 more closely approximated that of occupational and social impairment with deficiencies in most areas. During that time period, the Veteran reported that he was “super alert” and experienced hypervigilance. He has said that he felt detached from others. He consistently reported poor sleep with frequent nightmares about his experiences in Vietnam and his friends who were killed there. Though the January 2009 VA examiner indicated that the Veteran enjoyed his job and the limited interaction he had with the public and his peers, the Veteran later clarified in a statement that he only interacted with his coworkers when absolutely necessary and that he maintained his employment as it provided a sense of “self-worth.” In addition, though the Veteran mostly denied suicidal and homicidal ideation to various treatment providers and to the January 2009 VA examiner, he indicated in written statements to VA that he had fleeting thoughts of suicide but was afraid to admit to such at his VA examination. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (the language of the regulation indicates that 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.) Finally, the Veteran, during the relevant time period, demonstrated impaired impulse control, as exemplified by the aforementioned December 2010 road rage incident. The Veteran himself noted that he only removed himself from the situation once he recognized that he was having a flashback. Given the foregoing, the Board finds that the Veteran’s symptoms prior to September 17, 2014, were shown to manifest in occupational and social impairment with deficiencies in most areas. For these reasons, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD for the entirety of the appeal period from October 22, 2008 to September 16, 2017. REASONS FOR REMAND The Veteran asserts that his diagnosed hypertension and obstructive sleep apnea are due to his service-connected PTSD. See September 2015 VA 21-526b, Veteran Supplemental Claim. VA obtained medical opinions in January 2016, July 2016 and September 2016, and the Veteran submitted an opinion from his private physician in April 2016. While the VA examiners opined as to a causal relationship between the claimed conditions and the Veteran’s service-connected PTSD, no examiner has specifically addressed the pertinent issue of whether PTSD aggravated either the Veteran’s hypertension or obstructive sleep apnea. While the September 2016 VA opinion stated that hypertension and obstructive sleep apnea were not aggravated by PTSD, the rationale in the opinion pertained exclusively to causation. The Veteran’s private physician checked a box stating that PTSD was caused by sleep apnea, rather than sleep apnea being caused by PTSD. He also stated that hypertension was caused by PTSD because blood pressure levels rose with heightened anxiety levels. However, a VA examiner noted that such was not a sustained condition. Accordingly, the Board will remand for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain supplemental VA medical opinions regarding the Veteran’s claims for service connection for hypertension and obstructive sleep apnea. Following a complete review of the file, the examiner or examiners are asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension and/or obstructive sleep apnea have been caused or aggravated beyond their normal progression by the Veteran’s service-connected PTSD. The examiner(s) must address the April 2016 private medical opinion from the Veteran’s family physician. A complete rationale must accompany all opinions. If the questions above cannot be answered without an in-person examination, such should be scheduled. 2. Then, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel