Citation Nr: 1808319 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 15-30 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for sleep apnea, including as secondary to an acquired psychiatric disorder. 2. Entitlement to service connection for hypertension (HTN), to include as secondary to an acquired psychiatric disorder. 3. Entitlement to an initial evaluation in excess of 30 percent prior to June 13, 2017, and in excess of 50 percent thereafter for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), anxiety disorder, and major depressive disorder (MDD). 4. Entitlement to a total disability rating due to unemployability (TDIU) prior to June 13, 2017. REPRESENTATION Veteran represented by: John S. Berry, Jr., Esq. ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1955 to August 1959. This matter come to the Board of Veterans' Appeals (Board) on appeal from July 2015 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2017, the Board remanded the claims for service connection for HTN and increased rating for an acquired psychiatric disorder for further development and adjudicative action. Based on the medical evidence of record, the Board finds it appropriate to recharacterize the Veteran's claim for PTSD to an acquired psychiatric disorder, to include PTSD, anxiety disorder, and MDD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU prior to June 13, 2017, is part and parcel of the increased rating claim; therefore, the issue is added to the issues on appeal. The Veteran had two distinct appeals pending before the Board with separate docket date. These appeals have been merged, and the combined appeal has been assigned the earlier docket number. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for HTN, to include as secondary to an acquired psychiatric disorder, entitlement to a rating in excess of 50 percent for PTSD, and entitlement to a TDIU prior to June 13, 2017, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's sleep apnea did not have its onset in service and was not caused or aggravated by PTSD. 2. Prior to June 13, 2017, the Veteran's acquired psychiatric disorder has manifested by at least occupational and social impairment with reduced reliability and productivity with disturbances of motivation and mood, difficulty establishing and maintaining effective social relationships, and impaired impulse control based on irritable behavior and unprovoked angry outbursts. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for an increased rating in excess of 50 percent prior to June 13, 2017, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Board notes that all of the Veteran's service records were destroyed in the 1973 National Personnel Records Center (NPRC) fire. VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005), citing Russo v. Brown, 9 Vet. App. 46 (1996). See also Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection for Sleep Apnea Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran claims he developed sleep apnea from his PTSD, which was service-connected in July 2015. The Veteran's VA treatment records indicate that the Veteran was given a sleep study in November 2015 and was subsequently diagnosed with sleep apnea in December 2015. He immediately began treatment with a CPAP and an oxygen concentrator. Prior to the diagnosis, the Veteran had indicated that he slept a lot but not well and felt tired. The Veteran was provided with a VA examination in April 2016. The Veteran reported symptoms of "sleeping poorly," snoring, and daytime fatigue "for years and years." Since using the CPAP, the Veteran felt his sleep was much more restful and his daytime fatigue was much improved, as well as some of his PTSD symptoms, such as nightmares and bad dreams. The examiner opined that it was less likely than not that the Veteran's sleep apnea was approximately due to or the result of or aggravated by his PTSD with anxiety attacks. The reasoning was that his sleep apnea is due to upper airway obstruction, and medical evidence does not support that PTSD causes or aggravates this condition. Rather, it was related to such factors as body habitus, aging, and obesity. His PTSD is associated with a separate sleep disturbance which included "nightmares and bad dreams," but these do not cause or aggravate his sleep apnea. Although treatment of sleep apnea has lessened these PTSD-related sleep disturbances by improving his overall sleep quality, this did not in any way indicate that the PTSD caused or aggravated his sleep apnea. In light of the above, the Board finds that the criteria for service connection for sleep apnea have not been met. Particularly, the Board finds persuasive the April 2016 VA examination medical opinion which was made following a thorough review of all evidence of record and offered a detailed rationale for the opinion. The Board acknowledges the publications submitted regarding the relationship between PTSD symptoms and sleep disordered breathing. However, these articles are not as probative in this case as the VA examiner's opinion because the medical opinion is specific to the facts of this particular case. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for obstructive sleep apnea, including as secondary to PTSD. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. III. Increased Rating for an Acquired Psychiatric Disorder The Veteran contends he is entitled to a disability rating in excess of 30 percent prior to June 13, 2017, and in excess of 50 percent thereafter. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Specific diagnostic codes will be discussed where appropriate below. A 30 percent rating is assigned 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). 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. Id. Symptoms listed in the General Rating Formula 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). A Veteran may only qualify for a given rating for a mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a rating, the criteria require not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. at 117. 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 for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in a veteran's favor. 38 C.F.R. § 4.3. Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran filed a claim for service connection for PTSD in January 2015. In July 2015, the RO granted service connection at 30 percent from the date the claim was filed. The Veteran timely appealed the decision and the Board remanded the claim for a new VA examination based on the Veteran's statements that his condition has worsened. The RO readjudicated the claim on June 2017 and granted a rating of 50 percent from June 13, 2017, the earliest date the Veteran met the criteria. Because the RO did not grant full benefits, the claim returned to the Board. A review of the Veteran's VA treatment records show that in February 2015 he reported experiencing frequent panic attacks with symptoms that include racing heart, sweating, shaking, shortness of breath, choking, nausea, dizziness, loss of control, numbness, flushes, and chills, and depressive symptoms such as showing little interest or pleasure, feeling down or hopeless, trouble sleeping, tired low energy, and feelings of failure or guilt. A suicide screening found he was not at a high risk. Although the Veteran has a strained relationship with his oldest daughter and granddaughter, he reported a close relationship with his youngest daughter and grandchildren, and he reported contact with friends and relatives about once a week, with some friends and relatives making him feel loved and cared for. The Veteran began taking medication for his panic attacks, and in April 2015, he reported being able to manage his anxiety and he was not having any panic attacks. He continued to deny suicidal/homicidal thoughts and audio/visual hallucinations. A June 2015 mental status exam found the Veteran's mood to be depressed and his affect restricted, denial of wishing self-harm, and his recent and remote memory intact. A July 2015 mental status exam showed the same findings. The Veteran was afforded a VA examination in June 2015. The examiner found 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 Veteran's symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. The Veteran had markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and irritable behavior and angry outbursts, with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. The Veteran's VA treatment records and June 2015 VA examination show the Veteran at least more closely approximates occupational and social impairment with reduced reliability and productivity due to disturbances of motivation and mood, difficulty establishing and maintaining effective social relationships, and impaired impulse control based on irritable behavior and unprovoked angry outbursts. The Board finds that the Veteran warrants a disability rating of 50 percent from June 19, 2015, the date he met the criteria. The matter of whether a disability rating in excess of 50 percent is warranted at any time during the appeal period is being remanded as discussed below. ORDER Service connection for sleep apnea, including as secondary to PTSD, is denied. Entitlement to a disability evaluation of 50 percent for PTSD prior to June 13, 2017, is granted, subject to the regulations governing the payment of monetary benefits. REMAND In June 2015, the Veteran was afforded a VA HTN examination. An addendum opinion was issued by a different VA examiner in August 2015. In the August 2015 addendum, the VA examiner opined that the Veteran's HTN being caused by his PTSD/panic issues and his HTN risk factors could not be separated, as they are intertwined, and to do so would require resorting to complete speculation. In providing this opinion, the examiner incorrectly stated the standard nexus test as whether the Veteran's HTN was specifically caused by or truly aggravated by the PTSD/panic issues, instead of whether it was at least as likely as not that the Veteran's HTN was caused by or aggravated by his service connected acquired psychiatric disorder. The Board finds this VA opinion inadequate and remands for a new opinion. Since the latest supplemental statement of the case (SSOC) was issued in September 2017, various documents have been added to the claims file, including VA treatment records addressing the service-connected PTSD. However, there is no indication that the Veteran has waived initial AOJ review of this evidence. Accordingly, the Veteran's claim for a rating in excess of 50 percent must be remanded for the AOJ to perform an initial review of evidence received since the last SSOC before the Board may adjudicate his claim. See 38 C.F.R. § 20.1304 (c). The AOJ should also adjudicate the issue of entitlement to a TDIU prior to June 2017 in the SSOC. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records for his HTN and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 2. After all of the above development has been completed to the extent possible, obtain a new medical opinion to determine the nature and etiology of his HTN. The electronic file, including a copy of this Remand, must be reviewed in conjunction with the claim. If the examiner finds that a physical examination is necessary to render an opinion, one should be scheduled.. The examiner is asked to provide opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's HTN was caused or aggravated by his service-connected acquired psychiatric disorder, to include PTSD, anxiety disorder, and MDD. A discussion of the underlying reasons for all opinions expressed must be included in the examiner's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide an explanation for the basis of that determination. 3. Then, readjudicate the claims of service connection for hypertension, an initial rating in excess of 50 percent for PTSD, and entitlement to a TDIU prior to June 13, 2017. If the benefits sought are not granted in full, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and, after allowing the appropriate period of time for response, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Michael Lane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs