Citation Nr: 19154652 Decision Date: 07/15/19 Archive Date: 07/15/19 DOCKET NO. 15-36 123 DATE: July 15, 2019 ORDER New and material evidence has been received to reopen a claim of service connection for sleep disorder. An initial 70 percent rating is granted for posttraumatic stress disorder (PTSD). A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Service connection for a low back disability is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Service connection for a sleep disorder was denied in an unappealed March 2011 rating decision. 2. Evidence received since March 2011 is new and addresses a previously unestablished element; it triggers the duty to assist when considered with the cumulative evidence of record. 3. The Veteran’s service-connected PTSD is manifested by deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment has not been shown. 4. Resolving reasonable doubt in the Veteran’s favor, throughout the appeals period her service-connected PTSD has prevented her from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a sleep disorder. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for an initial rating of 70 percent, and no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110(a); 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2002 to July 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge by videoconference hearing. A copy of the transcript is associated with the Veteran’s claims file. In December 2018, the Veteran filed a motion to advance on the docket due to financial hardship. However, the Veteran has not submitted evidence in support of his financial hardship to warrant expedited consideration, and she has not contended that there is any other basis on which to consider her motion for expedited consideration. See 38 C.F.R. § 20.900(c). In the absence of sufficient cause, the Veteran’s motion to advance on the docket is denied. 1. New and material evidence has been received to reopen a claim of service connection for sleep disorder A March 2011 rating decision denied the Veteran’s claim for service connection for sleep disturbance. At the time the Veteran claimed “sleep problems.” Currently she seeks service connection for sleep apnea. The Board finds that the previous decision encompassed a claim for service connection for sleep apnea. Thus, new and material evidence is required to reopen the claim. See Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. Service connection for sleep disorder was denied in the March 2011 rating decision because there was no evidence that such was incurred in or as a result of service. The Veteran was notified of this decision, and of her appellate rights, in notice sent on March 29, 2011. She did not submit a notice of disagreement, and no new and material evidence was received within one year. Hence, the March 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. An application to reopen this claim was received in August 2012. Since the last decision additional evidence containing diagnoses of sleep apnea has been added to the record. As this evidence was not previously reviewed by the RO, it is new. This evidence addresses a current disability, a previously unestablished element. Further, the Veteran has contended that her sleep apnea is aggravated by her service-connected psychiatric disability. The credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The new evidence has triggered VA’s duty to obtain a medical opinion when considered with the cumulative record. Hence, new and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. A rating of 70 percent is granted for psychiatric disorder The September 2013 rating decision on appeal granted service connection for “PTSD (also claimed as anxiety, depressive disorder, OCD, phobias, social disorder, panic attacks, military sexual trauma, and body dysmorphic disorder)” and assigned an initial 50 percent rating from August 2012. The Veteran disagreed with the initial rating. 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 will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted where objective evidence demonstrates 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 criteria for a 100 percent rating include a non-exhaustive list of symptoms reflective of a total occupational and social impairment. A 100 percent evaluation 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 ability 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. Treatment records dated in July 2014 and April 2015 noted suicidal ideation. On VA examination in July 2013, the examiner noted that the Veteran experienced the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, impaired judgment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran described having flashbacks of her military sexual trauma. She reported a history of intermittent suicidal ideation. She reported irritability, angry outbursts, and poor sleep. The Veteran reported having panic attacks at least once per week. On examination, the Veteran was fully oriented, with anxious mood and fair attention. An August 2017 statement from the Veteran’s treating counselor noted that due to the Veteran’s PTSD symptoms she rarely left her house, was extremely insecure, and had no confidence. The Veteran rarely slept due to night terrors. A February 2018 eating disorders DBQ noted that the Veteran’s eating and body dysmorphic disorders began after her rape in service and were attributable to her attempt to regain control of her body following that trauma. In a February 2018 statement, the Veteran’s treating physician noted that she has severe PTSD and did not feel safe outside her home. She stayed home as much as possible. The Veteran experienced flashbacks of her rape. She avoided crowds, social situations and driving. A May 2018 letter from a licensed psychologist noted that due to her service-connected psychiatric condition, the Veteran exhibited impairment across most areas of life including but not limited to occupational, social, activities of daily living, judgment, mood, behavior, and thinking. He opined that the Veteran’s service-connected PTSD and diagnoses of body dysmorphic disorder and eating disorder “contribute to a total social and occupational impairment.” He noted that the Veteran exhibited “a myriad of reckless/self-destructive behaviors including excessive caloric restriction, binging behaviors, self-harming behaviors, pain-seeking behaviors, excessive plastic surgeries, poor treatment compliance, and poor treatment attendance.” The Board finds that the Veteran’s service-connected psychiatric condition has met the criteria for a 70 percent rating throughout the appeals period. It has resulted in occupational and social impairment with deficiencies in most areas. The record demonstrates that the Veteran has exhibited suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The weight of the evidence of record is against a finding that the Veteran’s service-connected psychiatric condition has resulted in total occupational and social impairment. The evidence of record has showed that the Veteran has relationships with her children and her mother, as well as a few friends. There is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, or disorientation to time or place. She has been consistently shown to be fully oriented, and her speech has been normal. While the Veteran has reported some suicidal ideation, she has indicated that she would not act on such-thus she does not exhibit a persistent danger of hurting self. In short, the Veteran has not experienced the gross distortion of reality, or total occupational and social impairment described in the criteria for a 100 percent rating. Thus, a rating in excess of 70 percent is not warranted at any time. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks entitlement to a TDIU. Her claim was implicitly raised by the record and is considered part-and-parcel of the higher initial rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Specifically, the Veteran contends that her PTSD symptoms preclude her from obtaining or maintaining substantially gainful employment. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Board notes that, given the above grant of an initial 70 percent rating for her service-connected psychiatric disability, the Veteran meets the schedular requirements for a TDIU from August 27, 2012, the date of her initial service connection claim. The Veteran has reported that she last worked full time in 2009. She has a college education and experience as an optometrist’s assistant. The July 2013 VA examiner noted that due to her PTSD the Veteran “may perform best in positions where she can work alone. She is likely to have difficulty in positions with high cognitive/emotional demands or high productivity/efficiency expectations.” An August 2017 statement from the Veteran’s treating counselor noted that the Veteran’s PTSD limited her life and kept her from being able to be gainfully employed. A May 2018 letter from a licensed psychologist noted that due to her service-connected psychiatric condition, the Veteran had an inability to acquire and retain gainful competitive work. “I opine that it is more likely than not that the claimant’s symptoms cause impairment in interpersonal relatedness. As a result, I opine that these symptoms impact the claimant’s ability to work cooperatively with coworkers, supervisors, and the public to a severe extent.” He also noted that the Veteran’s symptoms “interfere with motivation and drive. As a result, I opine that these symptoms impact the claimant’s ability to maintain task persistence and pace, the ability to arrive at work on time, and the ability to work a regular schedule without excessive absences to a moderate/severe extent.” Based on a review of all of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the symptoms of the service-connected PTSD reasonably preclude her from securing or maintaining substantially gainful employment. Accordingly, the claim for TDIU is granted. Finally, the Board has considered whether entitlement to special monthly compensation (SMC) is warranted. VA’s duty to maximize a claimant’s benefits includes consideration of whether her disabilities establishes SMC under 38 U.S.C. § 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 single disability rated as total and additional disability or disabilities that may combine to a separate 60 percent rating. SMC is not warranted in this case. Although the Board granted TDIU based solely on the Veteran’s service-connected PTSD, she is not service-connected for additional disabilities that combine to at least 60 percent. REASONS FOR REMAND 1. Service connection for a low back disability is remanded. The Veteran contends that she has a low back disability that began during service. The service treatment records note that she was seen for lumbar strain in October 2005. She was also noted to have complaints related to tailbone pain in service. Following service, an April 2012 MRI noted L-5 disc herniation. Spondylosis was noted in August 2012. A VA examiner in July 2013 opined that the Veteran’s current back disability was not related to service. However, that opinion did not contain sufficient rationale for the examiner’s conclusion. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Another examination is warranted. 2. Service connection for sleep apnea is remanded. In general, the Board may not consider an issue on the merits unless the Agency of Original Jurisdiction (AOJ) did so. The Board cannot, for example, reopen an issue and consider it on the merits if the AOJ did not reopen it unless doing so would not prejudice the Veteran or he or she waives AOJ consideration. Hickson v. Shinseki, 23 Vet. App. 394 (2010); Bernard v. Brown, 4 Vet. App. 384 (1993). In the September 2013 rating decision on appeal, and in the August 2015 statement of the case, the RO/AOJ did not reopen the claim and adjudicate on the merits. Rather, it was determined that new and material evidence was not submitted for the claim for sleep disturbance and it was not reopened. At no point has the Veteran waived initial RO/AOJ consideration of this issue on the merits. It further cannot be said that she would not be prejudiced if the Board were to proceed without such consideration. As a result, the claim will be remanded for AOJ reconsideration on the merits. Additionally, given the current diagnosis of sleep apnea and the Veteran’s contention that her service-connected psychiatric disability has aggravated her sleep apnea, a VA examination and opinion would be helpful in determining whether the Veteran’s sleep apnea is related to a service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the etiology of the Veteran’s sleep apnea. The entire record must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. Provide an opinion as to whether it is at least as likely as not that the sleep apnea is proximately caused by or aggravated by the Veteran’s service-connected psychiatric disability. The examiner must include a rationale for all opinions expressed. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any current back disability. The entire record must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability, to include degenerative disc disease and spondylosis of the lumbosacral spine, had onset during, or is otherwise related to, service. The examiner must include a rationale for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, 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.