Citation Nr: 1815154	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  11-26 682A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for a sleep disorder, to include sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), on a substitute basis.

2.  Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) prior to February 26, 2010, on a substitute basis.

3.  Entitlement to an initial rating in excess of 50 percent for PTSD, on a substitute basis.


ATTORNEY FOR THE BOARD

R.M.K., Counsel

INTRODUCTION

The Veteran served in the United States Marine Corps from October 1965 to October 1967, to include service in Vietnam.  He died in August 2017, and the appellant is his surviving spouse.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, dated in April 2009 (sleep apnea), April 2011 (CAD), and October 2011 (PTSD). 

Historically, a September 2014 Board decision in pertinent part denied service connection for a sleep disorder, including sleep apnea.  In a November 2015 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated that portion of the September 2014 Board decision.  

In correspondence received in February 2017, the Veteran requested that his appeal for service connection for a sleep disorder, including sleep apnea, be withdrawn from appellate consideration.  However, pursuant to his subsequent death prior to promulgation of a Board decision on the matter, a dismissal of the appeal based on withdrawal was not appropriate as the Board had no jurisdiction to adjudicate the matter subsequent to the Veteran's death.  Therefore, in a September 2017 decision, the Board dismissed all issues on appeal.  

The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008.  As provided for in the statute, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title."  Regulations were recently promulgated with respect to substitution claims.  See 79 Fed. Reg. 52977 (Sept. 5, 2014).  As above, in this case, the Board finds that the provisions pertaining to substitution are applicable in this case.  Moreover, the RO issued a favorable decision in November 2017 accepting the appellant as an eligible substitute claimant pursuant to 38 C.F.R. § 3.1010 (2017).  

The Board also notes that service connection was granted for CAD in an April 2011 rating decision with an evaluation of 10 percent assigned from the date of service connection on March 23, 2004, and an evaluation of 100 percent assigned from September 1, 2010.  Ultimately, in a November 2014 rating decision, the 100 percent evaluation was assigned from February 26, 2010.  Therefore, as the Veteran was receiving the maximum schedular evaluation for such disability as of February 26, 2010, the Board has characterized the issue as shown on the title page of this decision.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  These records were reviewed in connection with the decision below.


FINDINGS OF FACT

1.  In February 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his Substantive Appeal with respect to the issue of entitlement to service connection for a sleep disorder, to include sleep apnea, to include as secondary to service-connected PTSD.

2.  Prior to February 26, 2010, CAD was asymptomatic, and treatment was with continuous medication.

3.  The occupational and social impairment from the Veteran's PTSD more nearly approximated reduced reliability and productivity than deficiencies in most areas throughout the period of this claim.


CONCLUSIONS OF LAW

1.  With respect to the issue of entitlement to service connection for a sleep disorder, to include sleep apnea, to include as secondary to service-connected PTSD, the criteria for withdrawal of the Veteran's Substantive Appeal have been met.  38 U.S.C. § 7105 (b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2017).

2.  Prior to February 26, 2010, the criteria for an initial rating in excess of 10 percent for CAD are not met.  38 U.S.C. § 1155 ( 2012); 38 C.F.R. §§ 4.7, Diagnostic Code 7005 (2017).

3.  The criteria for an initial rating in excess of 50 percent for PTSD are not met.  38 U.S.C. § 1155 ( 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  As reflected in the February 2017 correspondence, the Veteran withdrew his appeal with respect to the claim of entitlement to service connection for a sleep disorder, to include sleep apnea, to include as secondary to service-connected PTSD.

Even though the appellant was subsequently recognized as an eligible substitute claimant, the regulations regarding substitution provide that substitution is limited to a claim or appeal that is "pending."  See 38 C.F.R. § 3.1010 (g) (1) (2017).  In fact, the regulations expressly state that "[a] substitute may not add an issue or expand a claim." Id.  § 3.1010 (f) (2) (emphasis added). 

The Board recognizes that 38 C.F.R. § 3.1010 (g)(1) explains that an "appeal is considered to be pending if a claimant filed a Notice of Disagreement in response to a notification from an agency of original jurisdiction of its decision on a claim, but dies before the Board of Veterans' Appeals issues a final decision."  However, 38 C.F.R. § 20.204 (c) provides that "[w]ithdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal." (Emphasis added).  Significantly, once an issue is withdrawn from appeal, reinstatement must be made by filing a new Notice of Disagreement and filing a new Substantive Appeal "provided such [new] filings would be timely under these rules if the appeal withdrawn had never been filed."  38 C.F.R. § 20.204 (c) (emphasis added); see also 38 C.F.R. § 20.302 ("[A] Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction [AOJ] mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later."). 

Because the Veteran's withdrawal of appeal in this case became effective on February 21, 2017, the date it was received by the AOJ (see 38 C.F.R. § 20.204 (b)(3) ("Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the [AOJ].")), his previous Notice of Disagreement and Substantive Appeal are likewise deemed withdrawn and cannot now be used as a valid basis for establishing a "pending" appeal under the substitution regulations.  Applying the governing laws and regulations to the facts of this case, when the Veteran's appeal withdrawal was received, the time period for filing any new Notice of Disagreement had already lapsed.  Therefore, there remain no allegations of errors of fact or law for appellate consideration as part of a "pending" claim or appeal as defined under the substitution regulations for this issue.  For these reasons, the Board does not have jurisdiction to review the issue of entitlement to service connection for a sleep disorder, to include sleep apnea, to include as secondary to service-connected PTSD, and it is hereby dismissed.

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (1). 

The appeal arises from initial evaluations following grants of service connection.  Once service connection is granted, the claim is substantiated and additional notice is not required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).  In November 2017 the appellant was issued additional correspondence which included discussion of the relationship of accrued benefits to substitution, the manner of substitution request and claim processing, and benefits to which substitution applies.  Based on the foregoing, no further notice is needed under VCAA.

Relevant to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been obtained and considered.  VA examinations and opinions on appeal were obtained, and the Board finds that such are adequate to decide the claims.  

Thus, the Board finds that VA has fully satisfied the duty to notify and assist with respect to the issues adjudicated herein, and that additional efforts to assist or notify in accordance with the VCAA would serve no useful purpose with respect to such issues.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  

Disability Rating Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  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 their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017).

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.  It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2017).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination.  Id.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  Id.  

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  

The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102.

Initially, the Board notes that although it has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

CAD

CAD is rated under Diagnostic Code 7005.  The rating criteria are as follows.  A 10 percent rating is warranted for a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required.  A 30 percent rating is warranted if a workload between 5 and 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation.  A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure (CHF) in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent.  A 100 percent rating is warranted if there is chronic CHF; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7005 (2017).

Service connection was granted for CAD in an April 2011 rating decision with an evaluation of 10 percent assigned from the date of service connection on March 23, 2004, and an evaluation of 100 percent assigned from September 1, 2010.  Subsequently, in a March 2013 rating decision, the 100 percent evaluation was assigned from March 10, 2010.  Ultimately, in a November 2014 rating decision, the 100 percent evaluation was assigned from February 26, 2010.

VA treatment records in May 2004 showed the diagnosis of CAD, that it was asymptomatic, and treatment was with continuous medication.

A VA opinion was received in November 2014 that did not address the timeframe pertinent to this appeal.  Subsequently, a VA opinion was received in August 2017 in which it was opined that the Veteran became symptomatic from CHF secondary to severe dilated cardiomyopathy in early 2010.  The examiner opined that the Veteran did not have any significant cardiac symptoms from March 2004 to the end of 2009.

After consideration of the evidence of record, the Board finds that a higher rating is not warranted for any period on appeal.  The Board acknowledges that in advancing this appeal, the Veteran and the appellant believed that his disability was more severe than the assigned disability rating reflects; however, the competent medical evidence is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal.

An initial rating in excess of 10 percent prior to February 26, 2010, is not warranted.  The next highest rating of 30 percent requires a workload between 5 and 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation.  Prior to February 26, 2010, the evidence of record showed treatment of continuous medication for CAD but that the Veteran did not have any significant cardiac symptoms.

For the reasons above, the Board finds the criteria for an initial rating in excess of 10 percent for CAD are not met. 

PTSD

VA regulations formerly required evaluation of mental disorders using the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  38 C.F.R. §§ 4.125, 4.126 (2017).  Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders.  The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5.  See 79 Fed. Reg. 45093 (August 4, 2014).  Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130.  The revised regulations and evaluations performed under the criteria of DSM-5 will apply.  However, the Secretary has specifically indicated that all diagnoses completed under the DSM-IV may still be applied for any claims pending before the Board.  Id.  Therefore, the Board will consider both DSM-IV and DSM-5 in reaching a decision regarding the claim for a higher initial rating for PTSD. 

PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  The rating criteria are as follows.  A 50 percent rating is warranted 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 effective work and social relationships.

A 70 percent rating is warranted 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 worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted 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.

The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous."  Id.   The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating."  Id.  Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples.  Put another way, the severity represented by those examples may not be ignored.

Global Assessment of Functioning (GAF) scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders 32 (4th Ed. 1994) [hereinafter DSM-IV]).  Basically, GAF scores are a snapshot of a person's mental functioning on a particular day.  GAF score and interpretations of the score are important considerations in rating a psychiatric disability but they are not dispositive.  Richard, 9 Vet. App. at 267.

GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Id.  

Service connection for PTSD was granted in an October 2011 rating decision with an evaluation of 50 percent assigned from the date of service connection on January 22, 2008.

The Veteran was afforded a VA examination in September 2010 in which he reported being married for 42 years with a good relationship overall, but there were some bad times.  He also had a good relationship with his daughters, brother, and sister but was estranged from his son and one sister.  He reported having good friends at his full-time job in food service, enjoyed going to auto races, watching baseball, and family karaoke.  He reported a history of violence/assaultiveness, stating that he had a bad temper and would throw things or destroy property.  The examiner noted that alcohol was a major avoidance behavior for the Veteran.  The Veteran reported that he was most likely an alcoholic.  Physical examination showed flat affect and anxious mood.  The Veteran reported sleep disturbances, prior homicidal thoughts, and prior suicidal thoughts but no recent ideation.  His symptoms were noted to also include recurrent and intrusive distressing recollections, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement, irritability or outbursts of anger, hypervigilance, exaggerated startle response.  The examiner assigned a GAF score of 55 based on chronic avoidance, flat affect, intrusive memories, ongoing sleep disturbances, and limited social and leisure activities.  The examiner found deficiencies in judgment, thinking, family relations, work, mood or school but not total impairment.

In December 2011 correspondence, it was noted that a change in the Veteran's work environment shortly before he retired made him feel that it would develop into interpersonal problems.  He reported that things on the "home front" were not good, he did not care for social events especially if a number of people were present, and that he did not have any friends.

The Veteran was afforded a VA examination in February 2015 in which the examiner found occupational and social impairment with reduced reliability and productivity.  The Veteran reported that he retired due to his heart condition, that this retirement was not something he had to do because of mental disorder issues.  The Veteran stated that he did not go to the races any longer, did not like to get out and around people as much as he used to, and was indicating that this was due to his cardiac condition and resulting low level of energy.  He reported having some marital conflicts but was getting along well at present with his wife.  He reported that he no longer saw his former workmate friends, and the examiner noted a low level of social connectedness.  The examiner noted inconsistent reporting of alcohol use, but found that it was less than previously reported.  The Veteran's symptoms included recurrent, involuntary, and intrusive distressing memories and dreams; avoidance; feelings of detachment or estrangement from others; hypervigilance; sleep disturbances; depressed mood; anxiety; suspiciousness; mild memory loss; disturbances of motivation and mood; survivor guilt; poor appetite and weight loss.  The examiner opined that the Veteran's level of impairment was essentially the same.  The examiner noted that functional impairments specifically ascribable to PTSD symptoms included some discomfort in situations that were crowded or confining and that the Veteran's anger and temper had been harder for him to control than typically for the average person.

On review of the evidence above, the Board finds that the occupational and social impairment from the Veteran's PTSD more nearly approximated reduced reliability and productivity (as required for a 50 percent rating) than deficiencies in most areas (as required for a 70 percent rating). 

In this case, the GAF score of 55 in the September 2010 VA examination was consistent with the Veteran's moderate symptoms.

The evidence of record shows that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity, which is squarely within the criteria for the 50 percent rating.  A schedular rating of 70 percent rating is awarded for deficiencies in most areas, but the evidence does not show the Veteran's PTSD impairment more nearly approximates such impairment. 

To this point, specific symptoms associated with the 70 percent rating include 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 worklike setting); inability to establish and maintain effective relationships.  Review of the evidence of record shows that the Veteran's PTSD caused prior suicidal ideation but no recent ideation, impaired impulse control, and some difficulty in adapting to stressful circumstances, but the other symptoms were absent.  The record shows no obsessional rituals; speech unremarkable; no near-continuous panic or depression to the level of affecting the ability to function independently, appropriately and effectively; no spatial disorientation; no neglect of personal appearance and hygiene; and repeated reports of generally good marital and familial relationships.  As noted in the February 2015 VA examination, the Veteran was indicating that his symptoms were due to his cardiac condition and resulting low level of energy, and the examiner found that the Veteran's level of impairment was essentially the same.

For the reasons above, the Board finds the criteria for an initial rating in excess of 50 percent for PTSD are not met. 

Other Considerations

Consideration has been given to assigning staged ratings; however, at no time during the period in question has the disabilities on appeal warranted more than the assigned ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in arriving at the determination above the Board has considered the lay evidence previously offered by the Veteran in the form of correspondence to VA in which it was generally asserted that he was entitled to a higher disability rating for his CAD and PTSD due to his reported symptoms.  Although the Veteran was competent to report his own overall symptomology, and in affording those statements full credibility, they did not show that his impairment more closely approximated the schedular criteria for the next higher evaluation.

Finally, when a veteran seeks an increased rating for a service-connected disability, VA must also consider entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), if it is raised by the evidence of record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

The RO has granted a 100 percent disability rating for CAD, effective February 26, 2010.  In a January 2018 rating decision, the RO also granted special monthly compensation (SMC) based on aid and attendance/housebound criteria from June 29, 2017.  It noted that the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, indicating that he had last worked in July 2010 and unemployability was due to the service-connected heart disability.

VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C.A. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent.  See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C.A. § 1114 (s)); see also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999).  Because a total rating was in effect for a service-connected disorder and SMC was awarded, the TDIU issue is moot.


ORDER

The appeal is dismissed with respect to the claim of entitlement to service connection for a sleep disorder, to include sleep apnea, to include as secondary to service-connected PTSD, on a substitute basis.

Entitlement to an initial rating in excess of 10 percent for CAD prior to February 26, 2010, on a substitute basis, is denied.

Entitlement to an initial rating in excess of 50 percent for PTSD, on a substitute basis, is denied.


____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs