Citation Nr: 18155840 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-63 746 DATE: December 6, 2018 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to PTSD is granted. Entitlement to an initial evaluation higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of OSA, and the evidence is in relative equipoise on the question of whether the OSA is related to his service-connected PTSD. 2. During the period on appeal, the Veteran’s PTSD resulted in, at most, occupational and social impairment, with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for service connection of OSA are met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for a disability rating higher than 50 percent for PTSD are not met. 38 U.S.C. 1155, 5107; 38 C.F.R. 3.102, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to January 1994. These matters come to the Board of Veterans’ Appeals (Board) on appeal from March 2015 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for OSA The Veteran contends that his OSA is secondary to his service-connected PTSD. For the reasons discussed below, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s service-connected PTSD caused or aggravated his OSA. Of record is a VA examination, dated August 2016, and an opinion from the Veteran’s private psychiatrist, dated June 2016. While the medical evidence clearly shows that the Veteran has OSA, the opinions differ as to whether the Veteran’s OSA was caused or aggravated by his service-connected PTSD. A June 2016 letter from a private psychiatrist opined it is at least as likely as not that the Veteran’s OSA is aggravated by service-connected PTSD. The Board notes there is no evidence the psychiatrist reviewed the Veteran’s claims file. In addition, he failed to explicitly cite the medical literature upon which he based his opinion. In corroboration of the private physician’s positive nexus opinion, in November 2016, the Veteran submitted an article indicating there is a positive association of physiatric disorders, including PTSD, and sleep apnea. The August 2016 VA examiner opined that OSA was less likely proximately due to or the result of the service-connected PTSD. The examiner stated there was no relationship between PTSD and OSA from currently available medical research and data. The examiner critiqued the private physician’s opinion as “speculative, without scientific evidence…or found [by a] review of the [medical] literature.” Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s currently diagnosed OSA was caused or aggravated by his service-connected PTSD. As discussed above, the Board is aware of the differing medical opinions offered in this case, as well as the imperfect opinion provided by the private physician. However, in giving the Veteran the benefit of the doubt, the Board finds that the differing opinions are of equal probative value. When the totality of the evidence supports the Veteran’s claim or is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the competing opinions described above, the Board resolves all doubt in the Veteran’s favor and finds that his OSA was caused or aggravated by his service-connected PTSD. Higher Evaluation for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. 1155; 38 C.F.R. 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. 4.10. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath at 589. 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 adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 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. The Veteran is seeking an increased rating for PTSD, which is currently rated at 50 percent disabling under DC 9411, in accordance with the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. 4.130. In relevant part, the rating criteria are as follows: Under the General Rating Formula, a 50 percent rating is provided 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. 4.130, DC 9411. A 70 percent evaluation 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; 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 maximum 100 percent evaluation is warranted for 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. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19. 2017), the Court recently held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. As the instant appeal was certified after August 4, 2014, the Board will not rely on GAF scores in assigning the rating in this case. Turning to the evidence, in a statement dated July 2013, the Veteran attributed his PTSD to an in-service event in which he assisted in the recovery of bodies from an oiler ship. He reported that this event has caused constant thoughts about the event, avoidance of water activities, sleep problems, and alcohol consumption. During an August 2013 endocrinology consultation, the Veteran denied anxiety and depression. He reported drinking 10 to 14 drinks a week and denied thoughts of self-harm. He reported feeling safe in his current relationship and/or environment. During a July 2014 VA examination, the Veteran was diagnosed with alcohol use disorder with alcohol induced depressive disorder. The examiner indicated the Veteran had minimal PTSD symptoms and did not meet the criteria for a diagnosis of PTSD. The examiner noted symptoms of depressed mood, chronic sleep impairment, and mild memory loss. In November 2014, private treatment records indicate the Veteran had been working as a therapeutic support specialist for 20 years. The Veteran reported many symptoms, including frequent nightmares about combat service, frequent panic attacks since service, difficulty concentrating and remembering names, self-isolation, insomnia, hypervigilance, guilt, previous suicidal thoughts, restlessness, agitation, loss of interest in people and activities, crying spells, feelings of worthlessness, irritability, fatigue, and decreased libido. On mental status examination, he was alert and oriented. He wore casual attire and was cooperative and generally able to relate to the examiner despite some increased tension and restlessness. Affect was blunted with psychomotor retardation. Speech was normal. He reported anxiety, depression, and hyperarousal symptoms. He had thought blocking, word searching, and delayed thought. He denied hallucinations, suicidal or homicidal thought, paranoia, and delusions, but had obsessive thoughts about being safe. He reported problems with memory. The Veteran was diagnosed with PTSD, mood disorder due to vitiligo, panic disorder with agoraphobia, and alcohol dependence. Private treatment records from that date to June 2016 show symptoms of anxiety, blunt affect, depression, social isolation, hyperarousal, and disturbances of motivation and mood. A February 2015 VA examiner diagnosed the Veteran with PTSD and alcohol use disorder. PTSD symptoms were noted as depressed mood, anxiety, and suspiciousness. The examiner noted comingled symptoms between the two psychiatric conditions (not amenable to diagnostic separation/assignment without resorting to mere speculation) as attention/concentration complaints, disturbances of motivation and mood, and chronic sleep impairment. The examiner found the Veteran had 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 examiner attributed the Veteran’s alcohol use disorder to PTSD, but found the Veteran was competent to manage his financial affairs. The Veteran reported continued self-isolation and self-consciousness about his vitiligo, which limited his ability to feel comfortable. The Veteran socialized at work and with his mother and sister. The Veteran noted he rode his motorcycle. He reported a pending court appearance as a result of being accused of breaking and entering and shooting a gun in city limits, which the Veteran stated he had no memory of due to an “alcohol-related ‘blackout’ at the time.” He reported he drank approximately three to four beers and nearly two pints of liquor a week. He was noted as able to perform basic and advanced instrumental activities of daily living. The examiner summarized that the Veteran’s PTSD symptoms were moderate in scope, frequency, and functional impact. The Veteran maintained full-time employment but with a reduced level of efficiency and reliability. The Veteran’s PTSD had a moderate functional impact on social functioning, as he remained socially isolated and withdrawn, some of which the Veteran attributed to the Veteran’s vitiligo condition. On mental status exam, he was appropriately groomed and casually dressed, with proper hygiene. He was cooperative, but somewhat apathetic, as well as alert and oriented. Attention/concentration, speech, and affect were normal. Mood was anxious. He was noted as having mild pervasive paranoid ideation. The examiner reported it was difficult to determine if the Veteran’s reported mild complaints of attention/concentration were attributable to his alcohol abuse or PTSD. Upon careful review of the evidence, the Board finds that a disability rating greater than 50 percent is not appropriate because the Veteran did not have occupational and social impairment with deficiencies in most areas or total social and occupational impairment. The Board notes the findings of the February 2015 VA examiner indicating the Veteran’s PTSD symptoms have not manifested to a degree warranting a 70 percent disability rating under DC 9411. These findings are supported by the medical evidence, which only indicates mental symptoms representative of a 50 percent disability rating under DC 9411. During the appeal period, the Veteran’s PTSD manifested by symptoms such as depressed mood, anxiety, panic attacks, memory impairment, sleep impairment, disturbances of mood and motivation, hypervigilance, and difficulty in establishing and maintaining effective work and social relationships, all resulting in reduced reliability and productivity, but less than deficiencies in most areas. Although the Veteran clearly has a disability, the Veteran exhibited no symptoms noted as applicable for a 70 percent rating. For the relevant period, the Veteran reported prior thoughts of suicidal ideation, but consistently denied such thereafter. Despite the Veteran’s report of obsessive thoughts about being safe, there has been no indication of obsessional rituals which interfere with routine actives, as he is able to perform activities of daily living. There is no evidence of speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene. The Board notes the Veteran’s alcohol abuse is attributable to his PTSD and has caused legal and social problems; however, there is no evidence warranting a 70 percent evaluation. As noted above, although he has reported an instance of legal troubles resultant from alcohol abuse, the Veteran has been found capable of managing his own affairs and has maintained employment for more than 20 years despite his excessive alcohol consumption. The Board reiterates that a higher rating than 50 percent for PTSD under DC 9411 is not warranted. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel