Citation Nr: 18158019 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-63 428 DATE: December 14, 2018 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. Entitlement to service connection for hypertension, to include as secondary to PTSD, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to PTSD, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to PTSD, is remanded. FINDING OF FACT The evidence of record indicates that the Veteran’s PTSD did not result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to May 1974. This case comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). VA has a duty to 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 v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used for PTSD. A 50 percent rating is assigned 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 assigned 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. Finally, a 100 percent rating is assigned 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his or her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” When evaluating a mental disorder, the Board 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. 38 C.F.R. § 4.126(a). 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. Id. The Veteran filed a claim for increase for his service-connected PTSD in September 2015. He was awarded a 50 percent evaluation from the date of his claim. The Veteran received a VA examination in December 2015, and the examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. He lived with his girlfriend of 14 years, and described their relationship as “good.” The Veteran also had four children, but did not have contact with his older daughter. The relationship with his other three children, however, was described as “good.” With regards to activities, the Veteran said he liked to ride a motorcycle and visit veterans in nursing homes. He also reported that he had a few friends, participated in honor guard, and was active in the veteran community. With regards to his occupational history, the Veteran worked for a construction company as a plumber for 30 years, but retired in 2013 due to medical problems and had not worked since that time. Upon examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran’s behavior was polite and cooperative, and his hygiene was good. He was oriented in all three spheres, and was alert and attentive. The Veteran’s mood was noted as dysthymic, his affect was mood congruent, and his judgment was good. He denied any homicidal or suicidal ideations, and there were no signs of perceptual disturbances. The Veteran submitted a statement in December 2015 and indicated he had symptoms of anger, anxiety, chronic sleep problems, depression, flashbacks, lack of emotions, memory loss, nervousness, panic attacks, and suspiciousness. He stated he had problems going out with friends, noting for example that he had to sit in certain areas of restaurants due to his suspicions of people around him. The Veteran had issues with loud noises, and indicated that he had a short temper that caused problems at home with his fiancée. The Board finds the December 2015 VA examination and lay evidence highly probative of the Veteran’s mental state and concludes that an evaluation greater than 50 percent is not warranted. The competent, credible evidence indicates that, although he is sometimes irritable and suspicious of people, the Veteran enjoys helping other veterans in nursing homes and had friends. A 70 percent evaluation is not warranted, because the Veteran did not have deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, nor does he have an inability to establish and maintain effective relationships. While he had a strained relationship with his oldest daughter, the evidence indicates that he has a positive relationship with his girlfriend and other children. The Veteran is also active in hobbies, including honor guard and volunteering with the veteran community. Furthermore, there was no indication that the Veteran exhibits symptoms of suicidal ideation, impaired impulse control, and obsessional rituals. Finally, a 100 percent evaluation is not warranted as the record reflects that the Veteran retired approximately five years ago for problems unrelated to his PTSD and the Veteran’s PTSD is not otherwise manifested by symptoms that have been shown to be productive of total occupational and social impairment. REASONS FOR REMAND 1. Sleep Apnea Regarding the Veteran’s claim for service connection for sleep apnea, to include as secondary to service-connected PTSD, a VA examination was performed in April 2016 and an addendum nexus opinion was provided in June 2016. However, the examiner’s opinions were inadequate, as the examiner provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 2. Hypertension Regarding the Veteran’s claim for service connection for hypertension, to include as secondary to service-connected PTSD, a VA examination was performed in April 2016 and an addendum nexus opinion was provided in June 2016. However, the examiner’s opinions were inadequate, as the examiner provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 3. GERD Regarding the Veteran’s claim for service connection for GERD, to include as secondary to service-connected PTSD, a VA examination was performed in April 2016 and an addendum nexus opinion was provided in June 2016. However, the examiner’s opinions were inadequate, as the examiner provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 4. Erectile Dysfunction Regarding the Veteran’s claim for service connection for erectile dysfunction, to include as secondary to service-connected PTSD, a VA examination was performed in April 2016 and an addendum nexus opinion was provided in June 2016. However, the examiner’s opinions were inadequate, as the examiner provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused or aggravated by his PTSD, to include any medications. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s sleep apnea disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s hypertension had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused or aggravated by his PTSD, to include any medications. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s hypertension disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his GERD. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s GERD had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s GERD was caused or aggravated by his PTSD, to include any medications. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s GERD disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his erectile dysfunction. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s erectile dysfunction had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused or aggravated by his PTSD, to include any medications. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 5. If the examiner finds that the Veteran’s erectile dysfunction disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel