Citation Nr: 18159515 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-00 048A DATE: December 20, 2018 ORDER Entitlement to a rating in excess of 50 percent for sleep apnea is denied. REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a Total Disability Rating Based on Individual Unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran requires the use of a CPAP machine when sleeping, but there is no evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for sleep apnea have not been met for any portion of the appeal period. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.97, Diagnostic Code 6847 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to February 1992, and from March 1995 to February 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating for Sleep Apnea Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 733 F.3d 1350, 1354 (2013). The Veteran's sleep apnea is evaluated under the rating criteria for sleep apnea syndromes, which includes obstructive, central, and mixed sleep apneas, pursuant to Diagnostic Code 6847. By way of history, the Veteran was granted service connection for this disability in a December 2012 rating decision. The RO assigned an initial rating of 50 percent, effective from March 1, 2012, the day after his separation from service. He then filed a claim to increase his disability rating on March 15, 2016. As such, the relevant temporal focus for this appeal is from March 15, 2015, one year prior to receipt of his claim for an increased rating. 38 C.F.R. § 3.400. A 100 percent rating is assigned when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; a tracheostomy is required. The current 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. 38 C.F.R. § 4.97, Diagnostic Code 6847. A review of the Veteran's VA treatment records dating from 2015 show that he has been provided with a CPAP machine, that he is compliant with the use of this machine, and that it enables him to experience restorative sleep. These records do not include any evidence of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or a tracheostomy. The Veteran was afforded a VA sleep apnea examination in April 2016 in connection with his claim for an increased rating. The claims file was reviewed by the examiner. The Veteran reported that he is “tired all of the time” and “takes Ambien on a nightly basis.” The examiner noted that Veteran's daytime somnolence would have mild to moderate impact for physical or sedentary employment. It would be pure conjecture to determine how much of his daytime somnolence is due to his OSA and how much is due to the taking of nightly sleep medication. Additionally, there were no findings, signs, or symptoms attributable to the sleep apnea, no surgical scars due to sleep apnea, and no other significant test findings and/or results noted during the examination. The Board finds that the criteria for an increased rating for sleep apnea have not been met. The Veteran is already in receipt of a 50 percent rating, which is the second highest rating available under the appropriate rating criteria. The next highest rating is 100 percent, and it requires chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. However, the VA treatment records and the April 2016 VA examination are negative for these symptoms. The Board concludes that the criteria for an increased rating for sleep apnea have not been met for any portion of the period on appeal. 38 C.F.R. § 4.97, Diagnostic Code 6847. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for PTSD is remanded. In April 2016, the Veteran underwent a VA examination to determine the nature and severity of his service-connected posttraumatic stress disorder. The examiner found that 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 noted symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner also noted that “the veteran continues to function with mild range impairment with occasional decrease in work efficiency. He should be commended for maintaining many of his familial relationships, as well as for actively participating in his own mental health treatment.” In a September 2016 treatment note, Dr. B, a clinical psychologist, states that He currently meets DSM-5 diagnostic criteria for, and is being treated for, Post-Traumatic Stress Disorder. Currently, his symptoms are in the severe range and severely limit his ability to work. He is highly anxious and would have significant difficult around co-workers or focusing on assigned work tasks. However, Dr. B. did not elaborate further on the symptoms, nor their severity, frequency, or duration. Furthermore, he did not provide a sufficient rationale for his opinions. Therefore, the Board finds this opinion helpful, but inadequate to adjudicate the increased rating claim. The Board also finds that Dr. B. should be contacted to provide a more detailed opinion on the severity of the Veteran’s PTSD. The Board finds that the medical evidence of record is insufficient to adjudicate the claim. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, and the evidence of record is otherwise insufficient to evaluate the appeal, an additional VA examination is appropriate. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected psychiatric disabilities. 2. Entitlement to a TDIU is remanded. The Board finds that the TDIU claim on appeal is inextricably intertwined with the increased rating claim on appeal. If the increased rating claims for PTSD is granted by the AOJ, this will directly impact the adjudication of the TDIU claim. See 38 C.F.R. § 4.16 (a) (2017). Additionally, as there is evidence of his PTSD affecting employment, as noted in the September 2016 treatment note, the issue must be remanded and readjudicated after a new VA examination is conducted, if warranted, to determine the current severity of the Veteran’s PTSD on his ability to secure or maintain gainful employment. For these reasons, the increased rating claim being remanded in the present case must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined increased rating and TDIU claims. The matters are REMANDED for the following action: 1. The AOJ should obtain outstanding VA treatment records, and associate them with the claims file. All attempts to secure these records, and any response received, must be documented in the claims file. If no VA treatment records are available, a response to that effect is required and should be documented in the file. 2. The AOJ should contact Dr. B, as noted above, and request that he complete a Disability Benefits Questionnaire to further elaborate on the findings that he provided in the September 2016 treatment note. 3. After step 2 is completed, if the AOJ determines that a new VA examination is warranted, the AOJ should provide the Veteran the appropriate VA examination to ascertain the current severity and manifestations of the service-connected PTSD. Access to the electronic claim file must be made available to the VA examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The VA examiner should also discuss the effect of the Veteran's psychiatric disability on his occupational functioning and daily activities. The appropriate DBQ for the service-connected psychiatric disability should be utilized. An explanation for all opinions must be provided. The examination must be in accordance with the DSM-5. 4. Then, schedule the Veteran for a VA examination with an appropriate medical professional to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is precluded from substantially gainful employment on account of his service-connected disabilities alone AND in combination. In making this determination, the person should take into account the Veteran’s education and work history, but may not consider the Veteran’s age or any impairment caused by nonservice-connected disabilities. 5. The Veteran should be informed that failure to appear for these examinations, without good cause, may cause his claim to be denied. See 38 C.F.R. § 3.655. All efforts to schedule the examination should be documented in the file. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor