Citation Nr: 18136341 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 14-26 338 DATE: September 18, 2018 ORDER Entitlement to service connection for sleep apnea is granted. An earlier effective date of May 27, 2008, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial 70 percent disability rating for PTSD for the period prior to November 8, 2011, is granted, subject to the legal authority governing the payment of compensation. The appeal as to the claim of entitlement to a higher disability rating for service-connected PTSD for the entire appeal period is dismissed. FINDINGS OF FACT 1. The Veteran’s sleep apnea at least as likely as not began during active service. 2. The Veteran filed an original claim for entitlement to service connection for PTSD in January 2009, within one year of his separation from his last period of active service. 3. Although the Veteran’s service connection claim for PTSD was denied in a June 2009 rating decision, the Veteran submitted new and material evidence in support of the claim in May 2010, prior to the expiration of the appeal period for the claim. 4. For the period prior to November 8, 2011, the evidence is at least evenly balanced as to the symptoms of the Veteran’s service-connected PTSD having more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 5. In a signed statement received in August 2014, prior to the promulgation of a decision by the Board in this appeal, the Veteran withdrew the issue of entitlement to a higher disability rating for service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to an effective date of May 27, 2008, for the grant of service connection for PTSD are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial 70 percent rating for PTSD, for the portion of the appeal period prior to November 8, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. 4. The criteria for withdrawal of the appeal as to the claim of entitlement to a higher disability rating for service-connected PTSD are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to August 1984, from February 2003 to July 2003, and from May 2007 to May 2008, including service in Iraq. The matters on appeal are from June 2009 and October 2011 rating decisions. The June 2009 rating decision, inter alia, denied the Veteran’s claim for service connection for sleep apnea. The October 2011 rating decision, inter alia, granted service connection for PTSD, and assigned a 50 percent disability rating, effective March 4, 2011. An April 2012 rating decision granted a higher, 70 percent, disability rating for PTSD, effective November 8, 2011. The Agency of Original Jurisdiction (AOJ) has framed the Veteran’s sleep apnea claim as a petition to reopen a previously denied claim. The Board notes, however, that although the Veteran did not appeal the denial of his claim for service connection for sleep apnea following issuance of the June 2009 rating decision the first considered the claim, new and material evidence pertinent to the claim, including statements from the Veteran and a former fellow service member, was submitted prior to the expiration of the appeal period. See 38 C.F.R. § 3.156(b). As a result, the June 2009 rating decision was precluded from becoming final with respect to the service connection claim for sleep apnea. Cf. Bond v. Shinseki, 659 F.3d 1362 (2011). As noted below, in a statement received in August 2014, the Veteran withdrew the issue of entitlement to a higher disability rating for service-connected PTSD. He indicated, however, that he wished to continue his appeal as to the other issues on appeal. These claims, as framed in a June 2014 statement of the case, include the issue of entitlement to an effective date earlier than March 4, 2011, for the grant of service connection for PTSD, and an effective date earlier than November 8, 2011, for the grant of a 70 percent rating for PTSD. Effectively, to the extent that this encompasses the Veteran’s desire for an earlier effective date for the grant of a 70 percent rating for PTSD, in reality the claim is one for a higher initial disability rating for PTSD for the period prior to November 8, 2011, the current effective date of the 70 percent rating. Notably, however, where the Veteran has withdrawn his general claim for a higher disability rating for PTSD for the entirety of the appeal period, but has still indicated his desire for a 70 percent rating for the period prior to November 8, 2011, the Board is limiting consideration of the higher initial rating claim for PTSD to that of an initial 70 percent rating for PTSD prior to November 8, 2011. 1. Entitlement to service connection for sleep apnea The Veteran asserts that he has sleep apnea that began during his active service. For the reasons that follow, the Board concludes that the Veteran has a current diagnosis of sleep apnea that at least as likely as not began during active service. An October 2008 private sleep study report noted a diagnosis of obstructive sleep apnea. Although the Veteran’s service treatment records do not provide any indication that he suffered from symptoms indicative of sleep apnea during his active service, he has provided credible evidence indicating that he suffered from such symptoms during service. In a May 2010 statement, a fellow service member, W. M. S., indicated that he served with the Veteran during his deployment to Iraq from 2007 to 2008. He noted that during this deployment he had to wake the Veteran up from his sleep on several occasions, either because of his snoring and appeared to be running out of breath, or because he would stop breathing. He noted that he and the Veteran were roommates throughout the entire deployment, and that there was no time for the Veteran to get these issues checked on. Additionally, in a May 2010 statement, the Veteran attested to beginning to experience fatigue and extreme exhaustion during his Iraq deployment. He also credibly reported in his February 2012 notice of disagreement (NOD) to the October 2011 rating decision that he began having symptoms of sleep apnea during his active service and that he was told to seek VA treatment upon his return home. He further noted that he was diagnosed with sleep apnea less than five months after his separation from service. The Veteran and W. M. S. are competent to report the Veteran’s sleep apnea symptoms, as the symptoms associated with sleep apnea lend themselves to observation of a lay witness, and, in this case, are supported by a subsequent diagnosis of sleep apnea made by medical professionals. Cumulatively, the noted lay observations of record provide competent and sufficient evidence to establish an etiology link between the Veteran’s currently diagnosed sleep apnea and his active service. In all, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran’s sleep apnea was incurred during service. Thus, his claim must prevail. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for sleep apnea. 2. Entitlement to an effective date prior to March 4, 2011, for the award of service connection for PTSD The appellant seeks entitlement to an effective date earlier than March 4, 2011, for the award of service connection for PTSD. He contends that the effective date for the award of service connection should be the day after his separation from service in May 2008. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). In the instant case, the Veteran filed an original, formal claim for service connection for PTSD in January 2009, within one year of his separation from service. Although that claim was denied in the June 2009 rating decision, the Veteran submitted new and material evidence pertinent to the claim, consisting of a May 2010 statement from his wife describing the Veteran’s PTSD symptoms, prior to the expiration of the one-year appeal period following issuance of the June 2009 rating decision. Accordingly, the June 2009 rating decision was precluded from becoming final with respect to the service connection claim for PTSD. Accordingly, the Veteran’s claim for service connection for PTSD remained on appeal. The evidence shows that the Veteran reported having symptoms of PTSD throughout the pendency of his appeal, including during the course of VA treatment in May and July 2008; and he was noted to have a possible PTSD diagnosis as early as during a February 2009 VA psychiatric evaluation. Ultimately, he was diagnosed with PTSD during an August 2011 VA examination based on the symptomatology that had been present during the pendency of his appeal. Accordingly, the Board finds that the appropriate effective date for the award of service connection for the Veteran’s PTSD is September 27, 2008, the day following his last period of active service, as he filed his claim within one year of his date of separation which remained pending until the claim was ultimately granted, and entitlement to PTSD was established based on his reported symptomatology throughout the pending appeal period. Cf. Lalonde v. West, 12 Vet. App. 377, 382-383 (1999) (the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA). For the above reasons, the Board finds that entitlement to an earlier effective date of May 27, 2008, is warranted for the award of service connection for PTSD. 3. Entitlement to a 70 percent disability rating for PTSD for the portion of the appeal period prior to November 8, 2011 The Veteran asserts that he is entitled to a 70 percent disability rating for PTSD for the portion of the appeal period prior to November 8, 2011. He has insinuated, including in a February 2012 notice of disagreement, that his PTSD treatment and symptoms have remained consistent since his separation from service. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The criteria for rating PTSD are found at 38 C.F.R. § 4.130, DC 9411. PTSD, like all other mental health disabilities, is rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where there is 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 inability to establish and maintain effective relationships. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held "that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration." Id. at 117. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. For the portion of the appeal period under consideration, prior to November 8, 2011, the record contains an initial VA PTSD examination dated in August 2011. The Veteran reported that his PTSD symptoms consisted of flashbacks, being easily startled and socially withdrawn, and fear of being in crowds. He reported having sleep impairment, getting one good night of sleep, of four to six hours, per week, and that he would only get from one to two hours of sleep on the other nights. His sleep was disturbed by physical pain and dreams, which occurred three to four times per week. He had no history of suicidal or homicidal attempts. He reported not having suicidal ideation in the prior six months, insinuating that he had had suicidal ideations. He estimated that he felt like he could lose control of his physical behavior two to three times per month, but that he generally walks away from such situations. He reported losing control of his verbal behavior about one time per week, generally consisting of getting loud and verbally aggressive. The examiner noted the Veteran’s PTSD symptoms as consisting of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting ot stressful circumstances, including work or a worklike setting. The examination findings appear to be substantially similar to those noted in a February 2012 VA examination report. Ultimately the AOJ assigned the Veteran a 70 percent rating based on the February 2012 VA examination results. Additionally, in his February 2012 NOD, the Veteran reported that he had been suffering from more severe PTSD symptoms, noting that he suffered panic attacks two to four times per week, and that he did suffer from suicidal ideations, and anger problems. He noted that he was on daily medication, and he maintained that he had problems functioning socially. Based on the evidence, the Board finds that the criteria for an initial 70 percent rating for the Veteran’s service-connected PTSD have been met, and thus, the Veteran’s claim as to this matter may be granted in full. Symptoms throughout the relevant portion of the appeal period have included frequent panic attacks, which may be deemed to consist of near continuous panic, affecting his ability to function appropriately; impaired impulse control, as manifested by his frequent loss of control of verbal behavior and verbal aggression, suicidal ideation, and difficulty in adapting to stressful circumstances, including in a work or work-like setting, and an inability to establish and maintain effective relationships. These symptoms are equivalent to those specifically contemplated in the criteria for a 70 percent rating. To the extent that this conclusion conflicts with that of the August 2011 VA examiner regarding the criteria that the symptoms and overall level of impairment most nearly approximate, this question involves an adjudicative and not a medical determination. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority “to make findings and decisions ... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present.”); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity”). The evidence is, thus, approximately evenly balanced as to whether the symptoms and overall impairment caused by the service-connected PTSD more nearly approximate occupational and social impairment with deficiencies in most areas, consistent with a 70 percent initial rating for portion of the appeal period prior to November 8, 2011. As such, the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, and entitlement to an initial rating of 70 percent, is warranted for the appeal period prior to November 8, 2011. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. Entitlement to a higher disability rating for service-connected PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a claimant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in a statement received in August 2014, the Veteran stated that he wanted to withdraw from appeal the issue of entitlement to a higher disability rating for his service-connected PTSD. Thus, no allegations of errors of fact or law remain for appellate consideration regarding this matter. Accordingly, the Board does not have jurisdiction to review this matter, and the appeal as to this claim must be dismissed. Evan M. Deichert Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel