Citation Nr: 18159336 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-57 558 DATE: December 18, 2018 ORDER Entitlement to a compensable rating of 50 percent for post-traumatic stress disorder, effective June 9, 2000 to October 12, 2009, is granted. Entitlement to an earlier effective date for a 70 percent disability rating for post-traumatic stress disorder, effective October 13, 2009, is granted. REMANDED Entitlement to service connection for a shoulder condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to sleep apnea, secondary to post-traumatic stress disorder, is remanded. Entitlement to service connection for gastroesophageal reflux disease is remanded. Entitlement to service connection for an unspecified neurological condition due to an anthrax shot is remanded. FINDINGS OF FACT 1. From June 9, 2000 to October 12, 2009, the Veteran’s post-traumatic stress disorder presented an occupational and social impairment with reduced reliability and productivity. 2. The Veteran filed her claim to reopen a claim for service connection of post-traumatic stress disorder on October 13, 2009. 3. From October 13, 2009, the Veteran’s post-traumatic stress disorder presents an occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria to a compensable rating of 50 percent for post-traumatic stress disorder, effective June 9, 2000 to October 12, 2009, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an earlier effective date for a 70 percent disability rating for post-traumatic stress disorder, effective October 13, 2009, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16(b), 4.18, 4.19. 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May to October 1977, February to August 1981, and September 1997. The Veteran served in the Air National Guard from March 1977 to June 2000, with varying periods of active and inactive duty. The Veteran appeals December 2010 and September 2016 rating decisions from the Department of Veteran Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This is a somewhat complex situation: The Board notes that the Veteran originally filed a service connection claim in December 2001 for PTSD, which was denied in a November 2002 rating decision. The Veteran moved to reopen the PTSD claim in October 2009. In a December 2010 rating decision, the RO found the denial of service connection for PTSD was clearly and unmistakably erroneous. Thus, the December 2010 rating decision granted service connection for PTSD, and assigned a non-compensable rating effective December 6, 2000; the date the RO received the original service connection claim. The Board notes that the RO, in a September 2016 rating decision, granted the Veteran an increased rating of 70 percent for the Veteran’s post-traumatic stress disorder (PTSD), effective June 8, 2016. The Veteran’s representative withdrew the Veteran’s Board hearing request in her December 2017 Appellate Brief. Finally, the Veteran’s early effective date claim is discussed in the increased rating section. Increased Rating The Veteran asserts that her PSTD symptoms warranted a compensable rating in 2000. Further, the Veteran contends that she is entitled to an earlier effective date, earlier than June 8, 2016, for her 70 percent PTSD disability rating. Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable rating of 50 percent for post-traumatic stress disorder, effective June 9, 2000 to October 12, 2009. The Veteran asserts that she is warranted a 50 percent compensable rating beginning on June 9, 2000, the day after separation from service. PTSD, and other psychological disorders, are rated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130. Under the applicable diagnostic criteria, a 30 percent rating is granted 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, mild memory loss (such as forgetting names, directions, recent events). Next, 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. In a November 1999 service treatment record, the Veteran was noted to be stressed with changes in personnel at work, and in the service. The service treatment record reported that the Veteran tends to give up more easily, and becomes more hopeless and despairing. At times, the Veteran can become irritable towards others, but remained even tempered. She has periods of fatigue that could last seven days a week. The Veteran reported having a supportive relationship with a boyfriend. In a December 1999 service treatment record, the Veteran was noted as having an inability to concentrate, emotional swings, feelings of hopelessness, and chronic sleep difficulties. The December 1999 Medical Board evaluation observed that the Veteran presented irritability, agitation, stress, sleep disturbances, poor appetite, poor concentration. The Veteran did not present suicidal or homicidal ideation. The evaluator opined that the Veteran was divorced, and living with a boyfriend and his three children. The Veteran stated that during this period of 1999-2000, “I was unable to cope with emotional stressors, [the] need to control, anger issues relative to PTSD – causing disqualification from Air Force National Guard.” See March 2018 Correspondence. In April 2000, a private psychologist opined that the Veteran’s stress was “sufficiently bad that it is important that she take time off work.” In May 2000, the Veteran was medically discharged because of major depression. A January 2002 private treatment note reported the Veteran suffered from low energy, panic and intense fear, and episodes of situational depression. The Veteran further reported that she was working part time. The Veteran underwent a VA examination in January 2002. During the VA exam, the Veteran stated that she was not having problems with depression since leaving the military. The Veteran did not present suicidal or homicidal ideation. The Veteran reported having intrusive thoughts, nightmares, difficulty in controlling anxiety, and trusting others. The Veteran stated having close relationships with friends and her fiancé. The Veteran does do some volunteer work, but avoids going alone to places at night. The VA examiner opined that the Veteran’s thought content was free of obsessions, delusions, or hallucinations. A May 2002 private treatment note reported the Veteran had a depressed mood, was angry, and had family relationship difficulties. Further, the Veteran reported that stressful situations made her anxious. The Veteran underwent another VA examination in September 2002. The Veteran reported that she decided to not work, and focus on being a full-time mother. The Veteran reported having occasional intrusive thoughts and recollections, struggles with need to be in control, and becomes anxious when not in control. The Veteran stated that she has friends, and a healthy relationship with her husband. Further, the Veteran stated she had occasional sleep problems, and was hypervigilant. The Veteran stated that during the period of 2001 to 2006, that she had anxiety, need for control, depression, anger issues, an inability to sleep, and a sense of foreboding. Additionally, the Veteran stated that her control issues impacted her family relationship. Finally, the Veteran contends that her PTSD symptoms were exacerbated by the breakup of her second marriage. See March 2018 Correspondence. The Veteran stated that in 2009, she was “suffering from additional sleep issues related to anxiety, fear, nightmares and other relational symptoms from PTSD.” See March 2018 Correspondence. Based on the above, the Board finds that a compensable rating of 50 percent is warranted. Although the Veteran has friends, her PTSD symptoms, such as her control issues, have made it difficult for her to maintain and establish effective work and social relationships. For example, the Veteran stated that her control issues impacted her family relationships. The Veteran had emotional mood swings, and difficulty concentrating. Further, the Veteran had a depressed mood and sleep difficulties which can disturb motivation and mood. The Veteran presents moments of fear and panic. Finally, the Veteran reported having a sense of foreboding which is tantamount of impaired abstract thinking. An increased rating in excess of 50 percent is not warranted because the Veteran denied having suicidal or homicidal ideation, did have close relationships with friends, and left working part time in order to be a full-time mother rather than because of her PTSD symptoms. Further, the evidence of record is silent as to whether the Veteran’s symptoms interfere with the ability to function independently. The evidence of record is silent as to whether, during this time, the Veteran’s symptoms led to a neglect of personal appearance and hygiene. As noted, the Veteran left service on June 8, 2000. The Veteran filed a claim for service connection for PTSD in December 2001. Because the Veteran filed a claim for PTSD within a one-year period from separation, the Veteran’s 50 percent rating is effective June 9, 2000. See 38 C.F.R. § 3.400(b)(2). Entitlement to an earlier effective date for a 70 percent disability rating for post-traumatic stress disorder, currently effective June 8, 2016 The Veteran contends that she is warranted an earlier effective date, earlier than June 8, 2016, for her 70 percent disability rating for PTSD. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). However, if it is factually ascertainable that an increase in disability occurred within the one-year prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). See also Hazan v. Gober, 10 Vet. App. 511, 519 (1992); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (noting that “the relevant temporal focus” in an increased rating claim is on “the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim”). The RO received the Veteran’s claim to reopen her PTSD service connection claim on October 13, 2009. As noted, the Veteran was granted service connection with a noncompensable rating for PTSD in a December 2010 rating decision. The Veteran disagreed with the rating in her April 2011 notice of disagreement. A November 2009 private medical note found that the Veteran was able to articulate with normal speech/language, rate, volume, and coherence. A June 2010 Buddy Statement noted that the Veteran was very fearful at night, or when she is not able to understand a situation. A September 2014 private treatment note reported the Veteran had extreme anxiousness, and difficulty sleeping. An October 2014 private medical note reported that the Veteran has sleep disturbances, anxiety, depressed mood, control issues, trouble getting out of bed because of depression and anxiety, and failed marriages. The Veteran contends that PTSD contributed to failure of her marriages. The Veteran noted that she works part time, appeared well groomed, had a normal thought process. The Veteran’s speech was clear, and at a normal rate, tone, and volume. A March 2015 private medical treatment note observed that the Veteran had occasional panic attacks, and mild memory and cognitive impairments which were exacerbated by stress. Also, the Veteran demonstrated avoidance behavior and increased anxiety when in stressful situations. The Veteran was afforded a VA examination in June 2016. The Veteran stated that she has been divorced twice, and married now for six years. The Veteran stated that she has close friends, but added that she stays away from groups, or clubs. The Veteran noted that she works part time. However, she sometimes has difficulty with working part time. The VA examiner noted that the Veteran had a depressed mood, anxiety, suspiciousness, panic attacks weekly, near-continuous panic or depression affecting the ability to function independently, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances. As such, the Veteran’s symptoms presented an occupational and social impairment with deficiencies in most areas. Based on the above, the Board finds that an earlier effective date for a 70 percent disability rating for PTSD is warranted. The effective date for the Veteran’s 70 percent disability rating is set at October 13, 2009; the date the RO received the Veteran’s claim to reopen her PTSD service connection claim. The evidence of record indicates that the Veteran’s PTSD symptoms began to worsen and continued up to the June 2016 VA examination. There is simply very limited evidence that would support a 70% rating prior to this time (and some evidence, as noted above, that would provide evidence against such a finding). This is a complex situation as the Veteran had been denied her claim (erroneously, as found by the RO) several years earlier. Because of this error, her condition was not perhaps monitored by VA as effectively as it would have been if the Veteran had been initially granted service connection based on her first claim filed in PTSD in December 2001 (as she should have been, based on the finding of clear and unmistakable error). Given these unique facts, the Board believes it much give the Veteran every consideration. As such, the Board presumes that the Veteran filed to re-open the PTSD claim because of worsening symptoms. Therefore, October 13, 2009 is the new effective date. It is important for the Veteran to understand that this finding provides the Veteran every consideration as well as providing the Veteran with the benefit of the doubt, based on the evidence of record. REASONS FOR REMAND Entitlement to service connection for a shoulder condition Entitlement to service connection for a neck condition Entitlement to service connection for gastroesophageal reflux disease Entitlement to service connection for an unspecified neurological condition due to an anthrax shot The issues of service connection for a shoulder, neck condition, gastroesophageal reflux disease (GERD), and an unspecified neurological condition are remanded for further development. The Board acknowledges that the Veteran was not provided a VA examination for the mentioned disabilities. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The evidence of record indicates that the stated disabilities or symptoms may be associated with service. First, the Veteran’s service treatment records indicate that the Veteran suffered a shoulder separation during training in April 1998. Second, a February 1996 service treatment record noted a sore and swollen neck after a motor vehicle accident during training. Third, a December 1996 service treatment record noted that the Veteran was treated for GERD. Finally, the Veteran was seen in August 1999 suffering from severe headaches and visual disturbances shortly after taking an anthrax vaccine. The Veteran’s representative provided two stories indicating the anthrax vaccine caused adverse reactions to those that were required to get the vaccine. Therefore, a VA examination is required, and remand is necessary. Entitlement to sleep apnea secondary to post-traumatic stress disorder The Veteran’s representative, in her December 2017 brief, argued that the Veteran’s sleep apnea was either caused or aggravated by the Veteran’s service connected PTSD. Thus far, no VA examination has been conduction to answer whether the Veteran’s sleep apnea is secondary to PTSD. As such, remand is necessary to obtain a VA examination on the subject. The matters are REMANDED for the following action: 1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and her representative should be so notified in writing. If possible, the Veteran and her representative are asked to submit these records themselves. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s GERD, unspecified neurological condition, neck condition, and shoulder condition. For the GERD, the examiner must opine whether the Veteran’s GERD is at least as likely as not related to an in-service treatment for GERD. For the unspecified neurological condition, the examiner must opine whether the Veteran’s unspecified neurological condition is at least as likely as not related to receiving three shots of the anthrax vaccine. For the neck condition, the examiner must opine whether the Veteran’s neck condition is at least as likely as not related to a motor vehicle accident where the Veteran suffered a swollen and sore neck. For the shoulder condition, the examiner must opine whether the Veteran’s left ankle condition is at least as likely as not related to a shoulder separation during training. 3. Then, schedule an examination with the appropriate clinician. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions, whether the Veteran’s sleep apnea is at least as likely as not: a) proximately due to the result of the Veteran’s service connected PTSD; or b) aggravated (increased in severity) beyond its natural progress by the Veteran’s service connected PTSD. 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel