Citation Nr: 18145263 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-26 789 DATE: October 26, 2018 ORDER Entitlement to service connection for obesity secondary to post-traumatic stress disorder (PTSD) is denied. Entitlement to an increased rating of 70 percent but no higher for PTSD is granted. REMANDED Entitlement to service connection for sleep apnea secondary to PTSD is remanded. FINDINGS OF FACT 1. Obesity is not a disease or injury for which service connection may be established. 2. The Veteran’s PTSD is manifested by suicidal ideation; depression affecting the ability to function independently, appropriately and effectively; impaired impulse control with bouts of anger; occasional neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to maintain effective relationships more nearly approximating occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. Entitlement to service connection for obesity, to include as secondary to PTSD is denied as a matter of law. 38 C.F.R. §§ 1110, 1131; VAOPGCPREC 1-2017. 2. The criteria for entitlement to an increased rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from June 2000, to June 2004 and from September 2004 to October 2005. This matter is before the Board of Veteran’s Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). New records have been added to the Veteran’s case file, but as they are not pertinent, it is not required that the Board obtain a waiver at this time. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. The Veteran is currently employed as a border patrol officer, and as such, is not unemployable due to service-connected disabilities. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 20.1103. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Entitlement to service connection for obesity secondary to posttraumatic stress disorder (PTSD). To establish a claim for direct service connection for obesity, a veteran must establish (1) medical evidence establishing a clear diagnosis of obesity; (2) credible supporting evidence that an in-service injury or event occurred; and (3) a link, established by medical evidence, between that diagnosis and a claimed in-service injury or event. 38 C.F.R. § 3.303(a). To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). Obesity is not considered a disease for purposes of VA benefits. See VAOPGCPREC 1-2017 (holding the “longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code” and “[o]besity per se is not a ‘disability’ for purposes of 38 C.F.R. § 3.310”). Therefore, service connection for obesity as secondary to PTSD is denied. Although obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct or secondary basis, obesity may be an “intermediate step” between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. Here, obesity is not claimed to be an intermediate step towards a secondary disability. Consequently, the Board concludes the Veteran’s claim of secondary service connection for obesity must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). 2. Entitlement to an increased rating of 70 percent but no higher for 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 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. 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. The Veteran’s PTSD is rated at 50 percent as of May 22, 2015 under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, 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. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Veteran contends that he is entitled to an increased rating of 70 percent. Throughout the period on appeal, the Veteran has generally reported that his PTSD is worse than is currently rated and results in significant inference with his ability to maintain effective family relationships, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The veteran claims suicidal ideation in the past and extreme paranoia. Further, he claims that his PTSD causes him to not want to leave the house, have the motivation to take care of himself, or bond with family members. He reports severe hygiene problems, and has difficulty staying focused in conversations at work and with his fiancé. He reports that bouts of extreme anger have led to his arrest on one occasion, he experiences extreme mood swings, and has an inability to function in public and around large groups of people. There is no evidence these assertions are not credible, and therefore they are entitled to probative weight. During a C&P Examination from May 2015, the examiner found the presence of symptoms associated with traumatic events, such as recurrent, involuntary and intrusive distressing memories of traumatic events, recurrent distressing dreams, recurring flashbacks, intense/prolonged psychological distress. The examiner further found symptoms such as depressed mood, anxiety, suspiciousness, regular panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner noted specifically during that C&P Examination that the symptoms have worsened since the previous assessment, with increasing anxiety and depression, hyper vigilance, suspiciousness, anhedonia, disturbing memories, nightmares, flashbacks, irritability, social withdrawal and sleep disturbances based on his in-service experiences. There is no evidence that either the VA examiner or the private physician were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. The Veteran’s PTSD is manifested by suicidal ideation; depression affecting the ability to function independently, appropriately and effectively; impaired impulse control with bouts of anger; occasional neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to maintain effective relationships. As such, based on the Veteran’s overall symptomatology and the resulting impairment occupational and social impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for PTSD. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted, the Veteran is currently employed as a border patrol officer, and as such, is not unemployable due to service-connected disabilities. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 20.1103. Furthermore, the presumption that the Veteran is seeking the maximum benefit under any applicable theory is a rebuttable one. Here, in his June 2016 substantive appeal, the Veteran specifically stated “I am appealing . . . because I think I should be rated at 70%,” thus limiting his appeal to that rating. Having been awarded the requested 70 percent rating in this decision, the question of a rating in excess of 70 percent is rendered moot. Therefore, for the reasons stated above, the Board finds that an initial rating of 70 percent, but no higher, for the Veteran’s PTSD is warranted. See Hart, 21 Vet. App. 505. REASONS FOR REMAND Entitlement to service connection for sleep apnea secondary to PTSD disorder is remanded. To establish a claim for entitlement to secondary service connection, three criteria must be met. 38 C.F.R. § 3.310. A veteran must have (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or, aggravated (increased in severity) beyond its natural progress by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A medical opinion assessing secondary service connection must address both causation and aggravation. This means that the requested medical opinion must assess not only if the claimed disability was caused by the service-connected disability, but also if it was aggravated by that service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136 (2012). Here, the Veteran has a current diagnosis of mild obstructive sleep apnea, found during an examination in November 2016. As discussed above, service connection is in effect for PTSD, and the Veteran contends that his sleep apnea is either caused or aggravated by his PTSD, and thus the second criteria has arguably been met. Thus, the matter at issue is whether the medical evidence can establish that the Veteran’s sleep apnea is either proximately due to or the result of the Veteran’s current PTSD, or, aggravated (increased in severity) beyond its natural progress by the PTSD. This matter is remanded for an adequate medical examination to include an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not related to his PTSD, or is proximately due to PTSD, or is aggravated beyond its natural progression by a service-connected disability. And as noted above, the diagnosis of obesity may be deemed to be an intermediary step in the process of determining service connection. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his sleep apnea. The Veteran’s electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is asked to offer opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from sleep apnea that was incurred in or is otherwise related to service. (b) If not, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from sleep apnea that is caused or aggravated by his service-connected PTSD. If aggravation is found, the examiner should address the baselines manifestations and the increased manifestations due to the service-connected PTSD. (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from sleep apnea, that is caused or aggravated by his obesity, that was at least as likely as not caused or aggravated by his PTSD. As a note to the clinician, although obesity can note be service-connected per se, obesity may be an intermediate step in secondary service connection but it must be found that the obesity itself was as likely as not caused or aggravated by the service-connected PTSD. A complete rationale for all opinions reached must be provided. 2. Readjudicate the Veteran’s claims after ensuring that any other appropriate development is complete, is warranted. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files is returned to the Board for further appellate action. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel