Citation Nr: 20006871 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-32 472 DATE: January 28, 2020 ORDER Entitlement to a rating in excess of 70 percent disabling for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for hypertension is remanded. Entitlement to service connection, to include on a secondary basis, for migraine headaches is remanded. Entitlement to service connection, to include on a secondary basis, for sleep apnea is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected PTSD has not been shown to more nearly approximate total impairment. CONCLUSION OF LAW The criteria for rating in excess of 70 percent disabling for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to September 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2017 (PTSD and TDIU) and April 2018 (hypertension, migraine headaches and sleep apnea) rating decisions by a Department of Veterans Affairs Regional Office (RO). In a prior June 2019 decision, the Board granted an increased 70 percent rating effective throughout the entire period on appeal. Thereafter, a September 2017 rating decision effectuated the increased 70 percent rating effective April 24, 2015. The Board additionally remanded the issues of entitlement to an initial rating in excess of 70 percent and entitlement to a TDIU. After reviewing the actions of the agency of original jurisdiction (AOJ), the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. PTSD The Veteran filed a service connection claim for PTSD in April 2015. As noted above, the Veteran’s PTSD is currently rated 70 percent disabling throughout the entire period on appeal. The issue currently before the Board is entitlement to an initial rating in excess of 70 percent. The Veteran’s PTSD is rated pursuant to 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 70 percent rating is assigned for a psychiatric disorder manifested by 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), or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). The Global Assessment of Functioning (GAF) score is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266 (1996). A score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). A score of 31 to 40 indicates there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A score of 41 to 50 indicates there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 indicates there are 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. A score of 61 to 70 indicates mild symptoms (e.g., depressed mood and mild insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). 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, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. Having discussed the rating criteria, the consideration now turns to review of the evidence. In his March 2015 report that accompanied the Veteran’s claim, Dr. H.J., a psychiatrist, noted the following findings. The Veteran was a high school graduate with one and a half years of college completed in legal investigation. The Veteran reported experiencing flashbacks and nightmares and he described issues getting along with friends and family members after service. The Veteran also reported symptoms of anger, depression, frustration, being easily startled, inability to tolerate crowds, isolation and problems sleeping. The Veteran further reported intermittent paranoia. In addition, the Veteran reported that his relationship with his family was all right and that he tried to stay in touch with them. He had worked after service for several years as a U.S. mail handler and then as a truck driver. He explained that lately he had been stressed out at work, partly from working on a sophisticated machine which required a lot of focus and concentration. He stated that due to some difficulties at work he had not been sleeping as easily and had become easily irritated and angered. As the report further indicated, the Veteran endorsed that he had disturbing memories, thoughts and images of traumatic event during service. He endorsed repeated dreams, insomnia, pessimism, fatigue, low energy, lack of concentration, and said reported became upset thinking about and avoiding traumatic memories. He further reported feeling distant and cut off from other people. Dr. H.J. noted a prior psychiatric history of treatment for depression, a behavior disorder and anxiety. The Veteran was also noted to have a prior history of some substance abuse, but not currently. Dr. H.J. also noted that, objectively, the Veteran appeared casually dressed with fair hygiene. The Veteran was cooperative and generally able to relate to the examiner, though with constricted affect, and sometimes a blunted affect with psychomotor retardation. Attitude was cooperative. Speech was good, although sometimes slow. The Veteran reported anxiety, depression, and hyperarousal symptoms. Affect was congruent to his mood. Thought process showed no flight of ideas, no looseness of association, no circumstantial thought, no perseveration. The Veteran denied any auditory, visual or tactile hallucinations. He reported seeing images of moving objects at the edges of his sight. There was an obsessive thought about being safe. He denied any suicidal or homicidal thought or any self-injurious behavior. Dr. H.J. diagnosed the Veteran with moderate to severe PTSD and major depressive disorder without psychotic features, and panic disorder with agoraphobia. The Board notes that other contemporaneous records from Dr. H.J. showed substantially similar findings. On a June 2017 follow-up consultation, the Veteran reported symptoms including: sleep difficulties, anxiety, depression, eating less, mood problems, and constricted affect. The Veteran denied any hallucinations or delusions, or suicidal or homicidal ideation. At a November 2017 VA examination, the examiner diagnosed the Veteran with PTSD. No other mental condition was diagnosed. The Veteran’s PTSD was found manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was noted to typically stay to himself and did not socialize. The Veteran reported fearing confrontation. He did not attend church. He did not like people walking up on him. He did not see his family. The Veteran was prescribed medication to help with sleep difficulties. He obtained these medications from a psychiatrist he saw every three months. The examiner noted the following symptoms: recurrent and intrusive distressing memories of the event; recurrent distressing dreams; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; sleep disturbance; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and, difficulty in adapting to stressful circumstances including work or a worklike setting. The Veteran was noted as appropriately dressed but disheveled, with adequate hygiene. Affect was dull and the Veteran was noted to remain clam. The Veteran was also noted as evasive in answering some questions. Insight was poor and judgment adequate and intact. The Veteran denied any delusions or hallucinations, or suicidal ideation. A January 2018 follow-up evaluation with Dr. H.J. indicated the Veteran had some anxiety, depression and sleep issues. Otherwise the Veteran’s mood was noted as alright, affect constricted, thought process free of flight of ideas or looseness of association. The Veteran denied any auditory, visual or tactile hallucinations. The Veteran further denied any suicidal or homicidal ideations or any self-injurious behavior. He was found alert and oriented. As noted above, the June 2019 Board decision granted an increased 70 percent rating for PTSD, and remanded the claim for the maximum available rating of 100 percent. The basis for that remand was for the AOJ to have the opportunity review the claims folder and medical history again, and ensure that all evidence was considered in the process of reaching a decision as to the severity of service-connected PTSD in light of any further development for the TDIU claim. No additional evidence was thereafter obtained, including a through inquiry with the Social Security Administration (SSA) as to whether the Veteran had ever filed a claim for disability benefits with that agency. After a review of the evidence of record, the Board finds that a rating in excess of 70 percent is not warranted. Specifically, the Board finds that in consideration of the Veteran’s symptomatology as a whole, his symptoms have not more nearly approximated total occupational and social impairment. In this regard, the Board notes that throughout the period on appeal, the Veteran has not exhibited symptoms such as, or nearly approximating, 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, or memory loss of such severity as forgetting names of close relatives, own occupation or own name. Instead, throughout the period on appeal, the Veteran has exhibited the following symptoms: recurrent and intrusive distressing memories; recurrent distressing dreams; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; sleep disturbance; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and, difficulty in adapting to stressful circumstances including work or a worklike setting. The Veteran has further been shown to have retained functional capacity from several standpoints. He has been able to retain a stable, or near stable, work history, and his symptoms have not been found to severely impair his basic daily life activities. Accordingly, throughout the period on appeal, the Board finds the Veteran’s symptoms are specifically contemplated by the lower 50 and 70 percent rating criteria. The Board also recognizes the Veteran’s assertion that his assigned GAF scores have not been addressed. In this regard, the Board notes that in March, April, July and October 2014, the Veteran was assigned GAF scores of 40. Notably, these scores were assigned prior to the applicable rating period on appeal. In any event, as noted above, a GAF score of 31 to 40 indicates there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). However, as further noted above, the Veteran’s symptoms have not included speech sometimes illogical, obscure or irrelevant, or evident of major impairment with regard to work, judgement, thinking or mood. The only reported symptom remotely approaching major impairment of judgement or thinking is a report of seeing images of moving objects at the edges of his sight. In this regard, the evidence of record does not show that this symptom is indicative of visual hallucinations. Instead, the Board notes that throughout the period on appeal, the Veteran has specifically and repeatedly denied any delusions or hallucinations. He has further, denied any suicidal or homicidal ideations. Accordingly, the Board does not find that the assigned GAF score of 40 prior to the period on appeal are indicative of disability more nearly approximating total impairment. Therefore, based on a complete review of the record and on the totality of the evidence, the Board finds that the Veteran’s service-connected PTSD does not more nearly approximate a higher total 100 percent disability rating. Accordingly, the preponderance of the evidence is against the assignment of a rating in excess of 70 percent and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Hypertension, Migraine Headaches, Sleep Apnea Initially, the Board notes that the service treatment records (STRs) contained in the claims file are extensive but barely readable. These copies were taken from microfiche record and state “best available”. However, it seems very likely that something readable could be obtained, and at very least it is worth making another attempt. Additionally, with regard to the service connection claims on appeal, the Veteran has asserted they are secondary to his PTSD. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that while the AOJ obtained VA examinations with regard to these claims on appeal, those examination reports do not contain an opinion as to whether the Veteran’s service-connected PTSD aggravated the service connection claims on appeal. The Board further notes that in support of his claims, the Veteran has submitted private medical letters from Dr. H.J. finding that the Veteran’s hypertension, headaches and sleep apnea are aggravated by the service-connected PTSD. However, a review of those opinion letters show that are either speculative in nature, or contain inadequate rationales. In this regard, while Dr. H.J. found that the Veteran’s sleep apnea was aggravated by the PTSD, that opinion appears based on a rationale and supportive findings noting that the diagnosed sleep apnea instead had aggravated the service-connected PTSD, which is not the issue on appeal. Additionally, with regard to the service connection claims for hypertension and migraine headaches, a review of those rationales noted medical research “suggesting” an association and findings that PTSD “could worsen” or “could be one of the causes” of those conditions. The Board notes that use of speculative language, such as those noted above, does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the Board finds that further VA examinations are warranted to determine the nature and etiology of the Veteran’s hypertension, migraine headaches and sleep apnea, to include whether the Veteran’s service-connected PTSD caused or aggravates those conditions. 2. TDIU The Board also finds that further development of the Veteran’s TDIU claim is necessary. In this regard, it is unclear whether the Veteran is currently employed. Specifically, a January 2018 letter, Dr. H.J. noted that the Veteran’s migraine headaches had resulted in missing work about 5-times in the past three months, and resulted in work productivity which had suffered at least 16-days in the last three months. Therefore, it appears the Veteran is currently employed. Accordingly, the Board finds that further development is necessary, and efforts should be made to obtain any employment information identified by the Veteran. 38 U.S.C. § 5103A. The matters are REMANDED for the following action: 1. Request that the RO please reprint the Veteran’s STRs in the most legible format available. This request is made in light of the fact that existing records are unreadable. (If the AOJ lacks any needed technology, please contact the National Personnel Records Center (NPRC) or other appropriate records depository to obtain these clear copies.) 2. Contact Social Security Administration to determine if the Veteran has filed a claim for benefits with that agency, as indicated occurred with regard to glaucoma. Obtain all relevant records regarding the claim. 3. Request information with regard to the Veteran’s work history and any related documentation as identified on the Veteran’s submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each contacted entity should be associated with the claims file. If the requested records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any medical records in his possession 4. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed hypertension. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by his service-connected PTSD? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was aggravated by his service-connected PTSD, to include as due to any prescribed medication? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner must discuss the private medical opinions authored by Dr. H.J. See January 2018 Opinion Letters. The examiner should also review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 5. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed headache condition. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed headache condition was caused the Veteran’s service-connected PTSD? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed headache condition was aggravated by the Veteran’s service-connected PTSD, to include as due to any prescribed medication? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner must discuss the private medical opinions authored by Dr. H.J. See January 2018 Opinion Letters. The examiner should also review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 6. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed sleep apnea condition. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) any diagnosed sleep apnea condition was caused by the Veteran’s service-connected PTSD? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep apnea condition was aggravated by the Veteran’s service-connected PTSD, to include as due to any prescribed medication? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner must discuss the private medical opinions authored by Dr. H.J. See January 2018 Opinion Letters. The examiner should also review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 7. Thereafter, readjudicate the claims on appeal. If any benefit sought on appeal is not granted the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. CHRISTOPHER LAMB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jason Lyons 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.