Citation Nr: 18161157 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-13 883 DATE: December 28, 2018 ORDER A 70 percent for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran’s symptoms of depressed mood, chronic sleep impairment, impaired memory and affect, anger outbursts, decreased patience and stress tolerance, hyperarousal, mild suicide risk, social isolation and difficulty maintaining effective relationships more nearly approximates occupational and social impairment with deficiencies in areas such as work, thinking and mood. CONCLUSION OF LAW The criteria for entitlement to a 70 percent rating, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Army from March 1967 to December 1968. In the January 2013 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for PTSD and assigned a 30 percent rating effective February 29, 2012. The Veteran now appeals that rating and entitlement to service connection for obstructive sleep apnea, claimed as due to his service-connected PTSD. 1. Entitlement to a rating in excess of 30 percent for service-connected PTSD The Veteran seeks a higher disability rating for his service-connected PTSD. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Symptoms listed in VA’s Rating Schedule for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran’s service-connected PTSD has been initially rated under the general Rating Schedule for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Notably, the claim on appeal was originally certified to the Board in May 2017. As such, the nomenclature employed in this portion of VA’s Rating Schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (“DSM-V”). 38 C.F.R. § 4.130. See 80 Fed. Reg. 14308 (Mar. 19, 2015). Under the Rating Schedule, a 50 percent evaluation is warranted where the evidence shows 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where the evidence shows 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 and place, memory loss for names of close relatives, own occupation, or own name. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms, and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan. In pertinent part, the Veteran was evaluated in the VA clinic in July 2012 for symptoms of insomnia, irritability and anxiety. He described a long-history of sleep impairment treated with Ambien, and symptoms of being bothered by loud sounds, increased vigilance, increased startle, being bothered by crowds, and having reduced patience and stress tolerance. His mental status examination was significant for anxious and mildly depressed mood, and restricted affect. He reported an instance of attempted self-harm 5 years previous. He subsequently reported additional symptoms of “out of control” agitation, low energy level, decreased motivation and difficulty tolerating his grandchildren. His suicide risk level was considered mild. In a statement dated December 2012, the Veteran described a post-service history of bad temper, social isolation, a failed marriage and sleep impairment. The Veteran underwent VA examination in January 2013, where the examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform tasks due to symptoms of depressed mood, chronic sleep impairment, mild memory loss- forgetting names, directions, or recent events, difficulty establishing and maintaining effective relationships, nightmares and intrusive thoughts. Additionally, the examiner noted that the Veteran displayed detachment in relationships, hyperarousal, irritability, and anger. He had a constricted affect, as the examiner described “it appeared [the Veteran] was trying to fight becoming upset/distressed.” The Veteran also reported a history of one suicide attempt in the past taking an overdose of insulin around the time him and his wife were considering adopting their grandson. Records associated with the claims file note that this occurred approximately in 2007, which is prior to the appeal period beginning February 29, 2012. Pertinently, the Veteran has not reported suicidal thoughts or attempts since then. The Veteran described having a good marriage, assisted with the care of his adopted grandson, and had some acquaintances from church. He kept busy with hobbies. He had completed high school, and had retired from a vocation after 36 years. He had initially built tires, but worked the last 20 years in the laboratory. He described occupational problems such as irritability, anger, and arguments with co-workers. On one occasion he punched a snack vending machine and on another occasion he punched a co-worker. He decided to retire after a shoulder surgery. In a statement received in February 2013, the Veteran described constant thoughts of Vietnam with sleep impairment, distrust of anyone except his spouse, and having anger management difficulties on a daily basis. He felt isolated from society and normal life. Thereafter, the Veteran’s VA clinic records reflect his continued report of irritability and problems dealing with his family. He described brief periods of anger but being able to better control himself. He was depressed all of the time. In 2014, the Veteran was described as having PTSD and major depressive disorder of moderate severity. Treatment records from October 2015 note that the Veteran suffered increased anxiety and insomnia, while still maintaining a depressed mood. Similarly, April 2016 treatment records reflect increased irritability and problems dealing with his family, especially his grandchildren. Moreover, the Veteran continued to endorse issues with sleep. In September 2016, the Veteran’s mood was described as dysthymic- up and down, though his medications seemed to be working well. The Veteran reported that he continued to keep busy with church activities. He enjoyed walking, and being quartermaster at his local VFW, though his responsibilities had decreased. He denied suicidal of homicidal ideation and was assessed with having a logical thought process, relevant thought content, judgment, memory, and insight. At the Veteran’s June 2018 Board hearing the Veteran testified that he continued to experience sleep disturbances and nightmares anywhere from two to seven times per week, he avoided crowds, and had issues holding a job. Specifically, he stated that even with medication including sleeping pills, he was only getting approximately three hours of sleep per night causing anger outbursts, increased irritability, and memory issues including remembering simple tasks and names. Moreover, the Veteran stated that while he had a good relationship with his wife, his relationships with others were undoubtedly strained, and contributed to his lack of social life besides church. The Veteran submitted a July 2018 letter from his VA psychologist who had treated him since 2012. The physician stated that the Veteran experienced chronic PTSD symptoms including depressed mood, sleep disturbances with nightmares on a regular basis, decreased motivation, anhedonia, difficulty with mood control, and blunted affect. The examiner opined that the Veteran’s current mental and physical symptoms resulted in an inability to work, and that the Veteran was not considered a candidate for referral to Vocational Rehabilitation. As such, the Board finds that entitlement to a 70 percent rating for service-connected PTSD is warranted as the Veteran’s symptoms of depressed mood, chronic sleep impairment, impaired memory and affect, anger outbursts, decreased patience and stress tolerance, hyperarousal, mild suicide risk, social isolation and difficulty maintaining effective relationships more nearly approximates occupational and social impairment with deficiencies in areas such as work, thinking and mood. In finding so, the Board notes that the Veteran’s description of his symptoms and functionality to be credible and competent evidence pertinent to the claim. However, as it pertains to the limited inquiry as to whether the Veteran’s symptoms results in total social and occupational impairment, the Board finds that the criteria for a 100 percent rating have not been met, or more nearly approximated, for any time during the appeal period. The Veteran is socially isolated but there is not “total” social impairment as he maintains relations with his family and attends church functions. The Veteran has mild memory loss, decreased concentration, mild suicidal risk and anger outbursts, but these symptoms do not reach the severity level of resulting in gross impairment of thought processes, grossly inappropriate behavior, being a risk of harm to himself or others, disorientation or being unable to care for himself. Therefore, a rating greater than 70 percent is not warranted. REASONS FOR REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 2. Entitlement to service connection for obstructive sleep apnea is remanded. At the Veteran’s June 2018 hearing he alleged that his service-connected PTSD has caused or aggravated his diagnosed obstructive sleep apnea. As there is no medical evidence addressing this contention, the Board finds that the Veteran should be afforded a VA examination in connection with this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (holding, in relevant part, that in order to trigger VA’s duty to provide an examination or obtain an opinion, there must be insufficient evidence to decide the case); see also 38 C.F.R. § 3.159(c)(4). 3. Entitlement to TDIU The Veteran recently submitted a medical opinion stating that he was unemployable, in part, due to service-connected PTSD. The Board finds that the issue of entitlement to TDIU is reasonably raised by the record, and the issue is remanded for further development. The matter is REMANDED for the following action: 1. Provide the Veteran notice of the information and evidence necessary to substantiate a claim of entitlement to TDIU. 2. Associate with the claims file any outstanding private or VA treatment records. 3. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had its onset or is etiologically related to the Veteran’s period of active service. The examiner is also asked to determine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is proximately due to, or the result of his service-connected disabilities, and PTSD in particular. If not proximately due to or the result of his service-connected disabilities, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that his sleep apnea is aggravated beyond the natural progress of the disability by his service-connected disabilities. In the instant matter, aggravation means any increase in severity beyond the natural progression of the claimed condition that is proximately due to or the result of the Veteran’s service-connected disability, including stress, symptoms and medication. (continued on next page) 4. Upon completion of the above, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue(s). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel