Citation Nr: 19190815 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-28 742 DATE: December 3, 2019 ORDER A rating higher than 50 percent for obstructive sleep apnea is dismissed. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted for the entire appeal period. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. During his November 2019 Board hearing, the Veteran withdrew his appeal for an increased rating for obstructive sleep apnea. 2. For the entire appeal period, resolving all doubt in the Veteran’s favor, his PTSD was manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 3. The evidence supports a finding that the Veteran’s service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for dismissal of a rating higher than 50 percent for obstructive sleep apnea have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for a 70 percent rating for the entire appeal period for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411. 3. The criteria for a TDIU due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that it appears as if the Veteran submitted a VA Form 9 (substantive appeal) on the three issues listed on title page on the same day a statement of the case (SOC) for various other issues was sent out. See May 26, 2017 substantive appeal and SOC. It is highly unlikely the Veteran received the 2nd SOC that day. As such, the Board finds that the 3 issues listed on the title page are the only issues currently on appeal. Moreover, he filed a supplemental claim under the Appeals Moderation Act (AMA) regarding the issues addressed in the May 26, 2017 SOC. In November 2019, the Veteran testified during a hearing before the undersigned Veterans Law Judge. Dismissal 1. A rating higher than 50 percent for obstructive sleep apnea 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 the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the November 2019 hearing the Veteran withdrew his appeal for an increased rating for obstructive sleep apnea. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Increased Rating 2. An increased rating for PTSD The Veteran is currently service-connected for PTSD. A May 2015 rating decision continued the 50 percent rating. Thus, the question now before the Board is whether his psychiatric disability symptomatology is more severe such that he should be compensated at a higher disability rating at any point during the appeal period. The Veteran indicated during the Board hearing that a 70 percent rating for his PTSD would completely satisfy his appeal as to that issue. The General Rating Formula for Mental Disorders (including PTSD) provides for a 50 percent rating 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. 38 C.F.R. § 4.130, Code 9411. 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 work like setting); inability to establish and maintain effective relationships. Id. 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. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit has 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Upon careful review of the evidence of record, the Board finds that the Veteran’s PTSD symptoms, for the entire appeal period, most closely approximate those warranting a 70 percent rating. In reaching this conclusion, the Board has considered both the medical and lay testimony describing the Veteran’s symptoms. The competent and credible evidence, that includes VA examination reports and treatment records; as well as his November 2019 testimony, establishes that the Veteran’s PTSD was manifested by symptoms such as irritability; difficulty controlling his anger; intermittent suicidal ideation; insomnia; nightmares; and avoidance behaviors, including social withdrawal, feelings of detachment, and loss of interest in activities. He reported experiencing a depressed mood; intrusive memories related to his military service, including flashbacks; hypervigilance; and an exaggerated startle response. Although he was close to his friends, he indicated that his irritability and anger occasionally resulted in conflicts in those relationships. The November 2015 examination report documents that the Veteran has had suicidal ideation but without a plan. During the November 2019 hearing, the Veteran testified that his PTSD symptoms are more severe than the 50 percent rating and that a 70 percent rating would satisfy his appeal. Collectively, these symptoms are of the type, extent, severity, and/or frequency indicative of occupational and social impairment in most areas of the Veteran’s life, including work, social relations, judgment, thinking, or mood. As such, the Board finds that the preponderance of the evidence supports the award of a 70 percent rating for the entire appeal period. The Board finds, however, that the Veteran’s PTSD symptoms do not reflect, and the Veteran does not report, total occupational and social impairment at any point during the appeal. In sum, a 70 percent rating, but no higher, is warranted for the entire period on appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to a TDIU due to service-connected disabilities Giving the Veteran the benefit of the doubt, the Board finds his service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Veteran is currently service-connected for PTSD (70 percent), and obstructive sleep apnea (50 percent). He has a combined 90 percent disability rating and meets the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16 (a). The May 2015 VA examiner observed the Veteran’s symptoms of feeling jumpy, tendency to be watchful or on guard, and social withdrawal affect his occupational functioning to a moderate degree. The November 2015 VA examiner indicated that there was no change from the findings in the May 2015 examination. Given the Veteran’s limitations, and his background, including educational history and past employment (with his last jobs being a truck driver/heavy equipment operator), and giving him the benefit of the doubt, the Board finds that his service-connected disabilities preclude most employment. A TDIU is granted. The Board will allow the RO to assign the appropriate effective date when it implements the Board’s decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.