Citation Nr: 18161112 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-59 668 DATE: December 28, 2018 ORDER Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s PTSD has resulted in total social impairment. 2. The Veteran’s PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 3. The preponderance of the evidence is against finding that the Veteran’s claimed sleep apnea is either proximately due to or aggravated beyond its natural progression by his service-connected PTSD, or is otherwise related to service. 4. The preponderance of the evidence is against finding that the Veteran has erectile dysfunction due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and November 2015 rating decisions. The Veteran was initially represented by a private attorney. In August 2017, the private attorney properly withdrew as the Veteran’s representative. See 08/21/2017, Third Party Correspondence. As such, the Veteran appears before the Board on a pro se basis. The issues of entitlement to a higher rating for PTSD and entitlement to a TDIU officially stem from a May 2014 rating decision, which the Veteran appealed in May 2015. See 10/03/2016, SOC. The May 2014 rating decision indicates that the Veteran submitted a claim for an increased evaluation in August 2013. A review of the record, however, reflects that the Veteran has continuously pursued these issues since March 20, 2012. See 10/29/2013, Third Party Correspondence. Increased Rating 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Percentage ratings for mental health disabilities are based on the criteria in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202, at *9 (Vet. App. Feb. 23, 2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in May 2018 so it was pending before AOJ on August 4, 2014. As such, the DSM-5 applies and the GAF scores will not be considered. 1. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD). The Veteran’s service-connected PTSD is currently rated as 70 percent disabling. For the Veteran to be entitled to the maximum rating of 100 percent, the evidence must show that the Veteran’s PTSD results in total occupational and social impairment. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. In this case, however, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD results in total social impairment. The evidence of record establishes that the Veteran was married three times and is now divorced, and that he lives alone. The evidence further shows that he has four children. The Veteran has stated that he has no relationship with them. See June 2015 VA examination. However, an October 2013 VA treatment note indicates that the Veteran was in the process of helping a daughter to find new housing. See 09/29/2016, CAPRI, at 3. Moreover, the evidence consistently shows that the Veteran has friends, with whom he socializes, some of which serve as a support network. For instance, an August 2016 VA discharge note that the Veteran was driven home by a friend after a colonoscopy. See 11/01/2017, CAPRI, at 134. Additionally, an April 2017 VA treatment note indicates that the Veteran was encouraged by a friend to seek group therapy for his PTSD. Id. at 2. A May 2014 VA examination report states that the Veteran had friends/associates that he could tolerate for some time. VA treatment notes from December 2014 and August 2016 indicate that the Veteran enjoys riding around and talking with a friend or two. See 09/29/2016, CAPRI, at 14 & 23. The Board finds that the totality of this evidence weighs against a finding that the Veteran has total social impairment. As such, the maximum schedular rating is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran seeks entitlement to a TDIU due to his service-connected PTSD. See 03/20/2012, Third Party Correspondence; 07/11/2012, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He meets the criteria for consideration of entitlement to a TDIU on a schedular basis, based on the currently assigned rating of 70 percent for his PTSD. 38 C.F.R. § 4.16(a) The evidence of record establishes that the Veteran completed high school and worked as a concrete finisher until 2000 and that he has not worked full-time ever since. Id.; see also 07/23/2012, VA examination, at 5. In his initial July 2012 TDIU application, the Veteran first reported one year of college education. In a subsequent December 2012 TDIU application, he reported two years of college education. In July 2012, a VA mental health examiner determined that the Veteran’s PTSD symptoms would only mildly affect his ability to relate to co-workers and receive supervision. Based on this rationale, the examiner concluded that the Veteran would be able to engage in work that did not involve close interaction with others, to include his usual work as a concrete finisher or a similar line of work. In May 2014, a different VA examiner, a VA psychologist, reached a similar conclusion. This examiner indicated that the Veteran’s PTSD symptoms posed minimal limitations to his ability to maintain employment and therefore did not prevent him from engaging in gainful employment with physical or sedentary work. In contrast, a June 2015 VA examination, by a VA supervisory psychologist, reflects a more severe disability picture. Significantly, this psychologist endorsed the following symptoms: anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, and neglect of personal hygiene. The examiner noted that the Veteran was initially hostile and defensive, but attentive, alert, and oriented during the session, and that he used crude language. In April 2017, the Veteran submitted a March 2017 statement from Mr. M.F., a private vocational expert. See 04/03/2017, Medical Treatment Record-Non-Government Facility. Mr. M.F. concluded that the Veteran’s PTSD results in a level of occupational impairment that would not allow him to work. Mr. M.F. further noted that the Veteran has a long history of conflict and work relationship issues that would make a liability for any employer and would not be hired. Mr. M.F. based his opinion on two VA examinations: one from April 2008 (that precedes the Veteran’s TDIU claim) and the one from June 2015, discussed above. The aforementioned April 2008 VA mental health examination reflects a finding that the Veteran seemed to have a limited ability to be meaningfully employed and suggests that if the Veteran decides to go back to work he would need to be in a highly structured and supportive environment under close supervision. While this evidence precedes the Veteran’s TDIU claim, the Board finds that it provides insight into the Veteran’s present condition, as there is no indication that the severity of the Veteran’s PTSD symptoms has improved since April 2008. Indeed, the Veteran’s service-connected PTSD has been rated as 70 percent disabling since January 16, 2008. Having reviewed the record, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s PTSD prevents him from securing or following substantially gainful employment. While two VA examiner have described the Veteran’s occupational impairment as minimal, two others – a VA examiner and a private vocational expert – have suggested that the Veteran’s occupational impairment is significant. Furthermore, there is evidence suggesting that the Veteran’s PTSD symptoms are of such nature and severity that no employer would take the risk of hiring him. Additionally, there is evidence indicating that the Veteran could only work in a highly protected environment. In sum, the Board finds the evidence to be in equipoise with respect to whether the service-connected mental health disability precludes this Veteran from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected mental health disability is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, entitlement to a TDIU is warranted. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Service connection may also be granted on a secondary basis where a condition is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). To warrant service connection on a secondary basis, the evidence must show that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Compensation for secondary service connection based on aggravation of a non-service-connected condition is only warranted for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for sleep apnea. The Veteran raised the issue of service connection for sleep apnea in an October 2015 claim. He asserts that the claimed sleep apnea is secondary to his service-connected PTSD. There is no clear indication that the Veteran has a current diagnosis of sleep apnea. VA treatment records show that a February 2013 pulmonary consult note reflects that the Veteran was found to have a low risk of developing sleep apnea, based on mild symptoms. See 11/01/2017, CAPRI, at 433-434. Otherwise, VA treatment records show complaints for sleep impairment associated with the Veteran’s PTSD. (Such symptoms are deemed contemplated by the rating assigned for PTSD.) In November 2015, a VA examiner opined that the claimed sleep apnea is less likely than not related to the Veteran’s service-connected PTSD. The examiner explained that medical science does not currently support that PTSD causes obstructive sleep apnea, adding that medical science has not currently determined the definitive cause or causes of sleep apnea. Based on this, the examiner concluded that it would be speculative to conclude that the Veteran has sleep apnea secondary to his PTSD. The Board finds that the VA examiner’s opinion, although brief, is adequate in the present case, where there is no competent evidence to indicate a possible nexus between his claimed sleep apnea and his service-connected PTSD. Further, the opinion is probative, as it is based on the current medical consensus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board concludes that the preponderance of the evidence weighs against finding that the Veteran has a diagnosis of sleep apnea that is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). While the Veteran believes that he has sleep apnea due to his service-connected PTSD, he is not competent to establish such causal nexus in this case. The issue is medically complex, as it requires knowledge of the respiratory systems and sleep medicine. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board finds the Veteran not competent to provide a nexus on this issue and gives more probative weight to the November 2015 VA opinion. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s claimed sleep apnea is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran has not submitted evidence or arguments in this regard.   4. Entitlement to service connection for erectile dysfunction. The Veteran raised the issue of service connection for sleep apnea in an October 2015 claim. The Veteran has not put forward a specific theory of entitlement. The Board has nonetheless reviewed service and VA treatment records in search of evidence that would substantiate the Veteran’s service connection claim. Having reviewed the record, the Board concludes that, while the Veteran has a current diagnosis of erectile dysfunction, there is no indication that this disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Similarly, there is no indication that the Veteran’s disability is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Board acknowledges the Veteran’s claim that his erectile dysfunction is related to his military service. Unfortunately, he is not competent to provide a nexus opinion in this instance and this give such statement no weight. Indeed, this issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). (Continued on the next page)   In short, the Board finds that the preponderance of the evidence is against the claim for service connection for erectile dysfunction. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel