Citation Nr: 18159134 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-03 447 DATE: December 19, 2018 ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected diabetes mellitus (DM). 2. Entitlement to service connection for headaches, to include as secondary to the service-connected DM. 3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). ORDER Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the service-connected DM is remanded. Entitlement to service connection for headaches, to include as secondary to the service-connected DM is remanded. FINDING OF FACT The Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to April 1972. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. PTSD Claim The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2002); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria are as follows. A 50 percent rating 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating 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. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the RO on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the RO. See 80 Fed. Reg. 53, 14308 (March 19, 2015) (emphasis added). The RO certified the Veteran’s appeal to the Board in March 2017, and as such, this claim is governed by DSM-5. The Veteran was afforded a VA examination in January 2016 in which the examiner found occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms were noted to include recurrent, involuntary, intrusive distressing memories and dreams; dissociative reactions; intense or prolonged psychological distress; avoidance; inability to remember an important aspect of traumatic events; persistent and exaggerated negative beliefs; persistent, distorted cognitions; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment; persistent inability to experience positive emotions; irritable behavior and angry outbursts; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbances; anxiety; suspiciousness; panic attacks that occur weekly or less often; panic attacks more than once a week; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran was alert and oriented during the examination with attention within normal limits (WNL); appearance appropriately attired with adequate hygiene; good eye contact; cooperative; pleasant; speech WNL; tense mood; flat affect; intact impulse control; no obsessions/compulsions; no delusions; fair insight and judgment. VA treatment records are replete for group counseling notes and reports of activities and symptoms to include loneliness; watching television; going fishing; stable mood; appropriate affect; fair insight; good control of behavior; forgetfulness; flashbacks; nightmares; depressed mood due to death of friends, family, and church members. The Veteran denied manic symptoms; denied suicidal and homicidal ideation; and denied delusions and hallucinations. The Veteran was afforded a VA-contracted examination in November 2018 in which the examiner found occupational and social impairment with reduced reliability and productivity. The Veteran reported living by himself; keeping in touch with his siblings from time-to-time; being close to one sister; and having one or two fishing buddies that he did not spend much time with as of late due to their family responsibilities. He reported retiring after working at the post office for 35 years. The Veteran’s symptoms were noted to include recurrent, involuntary, intrusive distressing memories and dreams; dissociative reactions; intense or prolonged psychological distress; avoidance; persistent and exaggerated negative beliefs; persistent, distorted cognitions; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment; persistent inability to experience positive emotions; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbances; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was responsive to questions and cooperative; was neatly dressed and well groomed; posture and motor behavior were normal; eye contact was appropriate; speech was fluent and quality of voice was clear; expressive and receptive language were normal; thinking was coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia. The examiner also noted that the Veteran’s affect was appropriate; mood was neutral; attention, concentration, and memory were grossly intact; and the Veteran denied suicidal and homicidal ideation. The Veteran seeks an evaluation in excess of 50 percent for his PTSD. The Board acknowledges that he experiences some panic attacks, depression, and inability to establish and maintain effective relationships. However, the aforementioned examination reports and VA treatment records document no other symptoms listed in the criteria for a 70 percent evaluation, or any symptoms analogous thereto. Mauerhan, supra. A review of the evidence does not show that the Veteran’s symptoms have approximated the level of disability contemplated by the criteria for a 70 percent rating for PTSD at any point during the appeal period, or indeed for any rating in excess of 50 percent. The evidence does not reveal that the Veteran experienced 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; or difficulty in adapting to stressful circumstances (including work or a worklike setting). Nor did he have symptoms on par with this level of severity. Consequently, the criteria for a rating in excess of a 50 percent have not been met. Certainly the Veteran had mood disturbance, i.e. depression, some panic attacks occurring more than once per week, and an inability to establish and maintain effective relationships. However, the objective evidence shows that he was proficient in most areas, including judgment and thinking. Total occupational and social impairment is certainly not shown. Accordingly, entitlement to an evaluation in excess of 50 percent for PTSD is denied. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran’s correspondence. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, nothing in the statements shows impairment more closely approximating the criteria for a higher rating. REASONS FOR REMAND The Board is of the opinion that additional development is required before the Veteran’s remaining claims on appeal are decided. In regards to the claims for sleep apnea and headaches, the Veteran contends that service connection is warranted to include as secondary to his service-connected DM. Service treatment records show that the Veteran complained of headaches in January and February 1972. VA treatment records show diagnoses of sleep apnea and that the Veteran complained of and has been treated for headaches. The Veteran has not been afforded VA examination(s) to address the etiology of his claimed sleep apnea and headaches. The Board finds that the Veteran should be afforded VA examination(s) regarding the nature and etiology of these claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. 2. After the above development is completed, schedule the Veteran for VA examination(s) to determine the nature and etiology of his claimed sleep apnea and headaches. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner(s) in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner(s) should address the following: a) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran has had a headache disability at any time during the pendency of this appeal. b) For any such headache disability and the diagnosed sleep apnea, opine whether they as likely as not (50 percent probability or greater) had their onset in service or are otherwise etiologically related to service. c) For any such headache disability and the diagnosed sleep apnea, opine whether they were caused or aggravated (permanently worsened) by the Veteran’s service-connected DM and/or his service-connected PTSD. A full and complete rationale for all opinions expressed must be provided. If the examiner(s) are unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Upon completion of the examinations and opinions ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, furnish to the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel