Citation Nr: 20022423 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-11 852 DATE: March 31, 2020 ORDER New and material evidence has been presented to reopen a claim of entitlement to service connection for obstructive sleep apnea. Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with depressive disorder prior to January 10, 2019, is granted and entitlement to a rating greater than 70 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) since March 21, 2016, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. A final August 2009 Agency of Original Jurisdiction (AOJ) rating decision denied service connection for obstructive sleep apnea on the basis that the evidence did not show that it began in service or is causally related to service. 2. The evidence received since the prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim for entitlement to service connection for obstructive sleep apnea. 3. Prior to January 10, 2019, the Veteran’s service-connected PTSD with depressive disorder, was at least as likely as not manifested by occupational and social impairment, with deficiencies in most areas. 4. Since January 10, 2019, the Veteran’s service-connected PTSD with depressive disorder, has not been manifested by total occupational and social impairment. 5. During the course of the appeal, the Veteran’s service-connected PTSD with depression at least as likely as not has prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Following the prior final denial of August 2009, new and material evidence has been presented to reopen the claim of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Resolving reasonable doubt in the Veteran’s favor, prior to January 10, 2019, the criteria for entitlement to an initial rating of 70 percent for PTSD with depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 3. Since January 10, 2019, the criteria for entitlement to an initial rating in excess of 70 percent for PTSD with depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.130, DC 9411. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU rating since March 21, 2016, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to July 1972. 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for obstructive sleep apnea If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In August 2009, the AOJ denied entitlement to service connection for obstructive sleep apnea on the basis that the evidence did not show that it began in service or is causally related to service. The evidence of record at that time included service treatment records and VA treatment records. By letter dated August 2009, the Veteran was notified of this decision. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since the August 2009 decision includes previously unconsidered Veteran testimony and a November 2016 VA opinion. This evidence relates to an unestablished fact needed to establish service connection (i.e., nexus to service). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran’s claim of service connection for obstructive sleep apnea are met. 2. Entitlement to an initial rating greater than 50 percent for PTSD with depressive disorder prior to January 10, 2019, and greater than 70 percent thereafter Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability over the time period beginning one year before the claim was filed through the final decision on that claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Separate evaluations may be assigned for separate time periods based on the facts found in the record. Fenderson v. West, 12 Vet. App. 119 (1999). If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, the Veteran’s PTSD with depressive disorder is rated as 50 percent disabling prior to January 10, 2019, and 70 percent disabling thereafter, under DC 9411. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned where there is evidence of 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 where there is evidence of 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; obsession 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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. 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 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. 38 C.F.R. § 4.126. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to “DSM-IV,” Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, Fourth Edition (1994). The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board in March 2019 (i.e., subsequent to August 4, 2014), the DSM-5 is applicable to this case. The current appeal is a result of a claim for service connection for PTSD that the Veteran filed in March 2016 and initially granted in a June 2016 rating decision. March 2016 VA mental health treatment records reflect that the Veteran was alert, oriented, and cooperative. He manifested no guarding or evasiveness; his psychomotor activity was normal; and he exhibited no abnormally or involuntary movements. His mood was sad, and his affect was appropriate. At that time, his speech and though processes were normal, and no psychotic features were evident. The Veteran denied experiencing hallucinations and delusions, and denied any suicidal ideation. He reported feeling sad; interrupted sleep; fatigue; difficulty concentrating, and tearfulness. He also reported that he enjoyed family reunions and a close relationship with family. During an April 2016 VA examination, the Veteran was diagnosed with PTSD and depressive disorder. Upon examination, the Veteran’s symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; and suicidal ideation. The examiner observed a blunted affect, halting speech, and mildly anxious mood. The Veteran continued to seek VA treatment for PTSD, including a May 2016 mental health consultation. At that time, the Veteran noted that he had had suicidal thoughts in the past, but had never made any plans and did not have any current suicidal ideation. Upon examination, he was alert and oriented; was casually dressed and fairly well groomed; had normal psychomotor activity, speech, thought processes, concentration, attention, insight, and judgment; manifested a subdued mood and mildly restricted affect; and manifested no suicidal ideation, hallucinations, or delusions. He received both group and individual treatment, and continued to exhibit similar behavior and symptoms. See, e.g., August, September, and October 2016 VA Treatment Records. During an October 2016 VA examination, the Veteran was again diagnosed with PTSD and depressive disorder. Upon examination, the Veteran’s symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss; flattened affect; and suicidal ideation. The examiner observed that the Veteran had adequate grooming and was appropriately dressed and related to the examiner with ease in an open manner. The examiner noted that the Veteran currently resides with his wife of 30 years. Despite indicating “suicidal ideation” among the Veteran’s PTSD symptoms, the examiner noted that the Veteran denied any current thoughts of hurting himself or others. The Veteran had a sad mood and flat affect. He was oriented to time, place, purpose, and person. While testing reflected impaired thinking, the examiner noted that the Veteran made no attempt to answer the questions posed and the testing did not reflect the Veteran’s true performance. Additionally, testing reflected that the Veteran’s memory was impaired, but his insight and judgment were adequate and overall intellectual ability was at least average. The October 2016 VA examiner also examined the Veteran in July 2017. The examiner determined that symptomology was mostly the same, but found no suicidal ideation during the July 2017 examination, and did find impairment of short- and long-term memory. The Veteran has continued to seek individual and group therapy at VA. November 2016 VA treatment records indicate that the Veteran manifested appropriate behavior; normal orientation, speech, and thought; good judgment and insight; and appropriate and friendly mood and affect. December 2016 VA treatment records reflect that the Veteran had suicidal ideation, without plan or intent, as recently as the previous month. Treatment records consistently reflect that the Veteran is well groomed. See, e.g., January 2018 VA Treatment Records. October 2018 VA mental health treatment records reflect that the Veteran reported trouble sleeping; feeling anxious and sad; hypervigilance; auditory hallucinations; and mild paranoia with no fixed delusions; but no suicidal or homicidal ideation. He indicated that his symptomology prevented him from attending his funerals for his brother and sister. He reported continuing to live with his wife, and take walks around the block and trips to church on Sunday. Upon examination, the Veteran was casually dressed and well groomed; alert and oriented; and manifested normal speech and thought. He also manifested an appropriate but restricted mood with a congruent affect. During the examination, he had no suicidal ideation and no auditory or visual hallucinations. His concentration, attention, insight, and judgment were intact. During a January 2019 VA examination, the Veteran was diagnosed with PTSD and depression. Upon examination, the Veteran’s symptoms included depressed mood; anxiety; suspiciousness; near-continuous panic or depression; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; flattened affect; speech intermittently illogical, obscure, or irrelevant; disturbances of mood and motivation; difficulty in establishing and maintaining effective relationships; difficulty adapting to stressful circumstances; and inability to establish and maintain effective relationships. The examiner observed that the Veteran had adequate grooming and was appropriately dressed and related to the examiner with ease in an open manner. The examiner noted that the Veteran currently resides with his wife of 31 years. The Veteran had a bad mood and flat affect with limited range. He was oriented to time, place, purpose, and person. Testing reflected impaired memory with inadequate mental control. Overall, testing reflected impaired cognitive function. Prior to his January 2019 VA examination, the Veteran reported that his PTSD symptomology had gotten worse. See May 2019 Veteran Statement. Additionally, in February 2020, the Veteran and his wife testified that his symptomology included memory loss, including mixing up his children’s names and an inability to remember old friends; an inability to interact with other people, including his family; and unprovoked anger. The Veteran testified that he rarely visits church, and leaves when the noise becomes too much for him to handle. The Veteran’s spouse testified that the Veteran’s anger sometimes made her feel afraid. The Veteran and his spouse are competent to attest to matters of which they have first-hand knowledge, including PTSD symptomology. See Jandreau, 492 F.3d at 1376-77. The Board finds the Veteran and spouse testimony to be credible and probative of the issue. Additionally, the Board notes that the Veteran displayed anxiety during his Board testimony, including constantly squeezing his fingers; becoming visibly teary; and appearing tense and nervous. While the Veteran noted an increase in his PTSD symptomology during the course of the appeal, resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his symptoms more closely reflected the criteria for a 70 percent schedular rating during the entire course of the appeal. He occasionally reported suicidal ideation; his spouse testified to periods of unprovoked anger affecting his relationship with her and the rest of his family; he exhibited various degrees of memory impairment and, on occasion, auditory hallucinations; and VA examinations reflected impaired cognitive function. The Veteran’s symptoms most closely resembled occupational and social impairment, with deficiencies in most areas. At no time, however, have the Veteran’s symptoms more closely reflected the criteria for a 100 percent schedular rating. In this respect, while the Veteran had memory and cognitive deficits, there is no lay or medical evidence that the severity of these deficits rose to the level of disorientation to time or place, or loss of memory for close relatives (other than occasionally mixing up the names of his children), own occupation or name. The Veteran does not exhibit neglect of personal hygiene, inability to appropriately perform activities of daily living, or grossly inappropriate behavior. There has not been total social impairment as he has maintained a marriage for more than 30 years. There has not been total occupational impairment as his rare attendance at church and walks around the block with his spouse reflected some residual occupational capability. Entitlement to a rating of 70 percent disabled, but no higher, for PTSD with depression is warranted for the entire period of the appeal. 3. Entitlement to a TDIU rating since March 21, 2016 Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Based on the decision above, the Veteran’s service-connected PTSD is rated as 70 percent disabling during the course of the appeal. He als has a ten percent rating for tinnitus, and a noncompensable rating for bilateral hearing loss. Therefore, the Veteran meets the criteria for TDIU consideration under 38 C.F.R. § 4.16(a). Further, the claims file contains evidence that he cannot secure or follow substantially gainful employment due to his service-connected disabilities. The record reflects that the Veteran’s highest level of education attained was three years of college. See February 2020 TDIU Application. After service, he worked as a salesman for a beer company until 1986, when he was fired after ten years because of problems getting along with supervisor. See April 2016 VA Examination. He has not been employed since 1986. Id. The Board notes that the Veteran reported that “he owns several businesses but still has trouble making ends meet” in June 2004. However, at least since March 21, 2016, the time period at issue on appeal, the evidence of record reflects that the Veteran has been unemployed. There is some evidence that the Veteran is unable to find employment for a back disorder that is not service-connected. Id. However, the symptomology described in the April 2016, October 2016, July 2017, and January 2019 VA examinations and the Veteran and spouse testimony indicate that his PTSD symptoms at least as likely as not preclude his ability to perform substantially gainful employment. Resolving reasonable doubt in the Veteran’s favor, his service-PTSD with depression at least as likely as not preclude his ability to perform substantially gainful employment. Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU rating since March 21, 2016, is granted REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. Based on a review of the record, a November 2016 VA examiner determined that the Veteran’s sleep apnea was less likely than not caused by the Veteran’s service-connected PTSD, noting some suggestive studies between the two but opining that medical literature has not confirmed a causative link. The opinion is inadequate for rating purposes as the examiner did not address whether the PTSD at least as likely as not aggravated obstructive sleep apnea, and did not address whether the sleep apnea was directly related to service. Additionally, subsequent to that opinion, the Veteran has provided testimony regarding how PTSD symptomology interferes with his use of his CPAP machine. A remand is needed to obtain an additional VA opinion regarding the nature and etiology of the Veteran’s obstructive sleep apnea. The matters are REMANDED for the following action: 1. Obtain VA treatment records since October 2018 and associate them with the claims file. 2. Forward the Veteran’s claims file to a somnologist for an opinion addressing the etiology of the Veteran’s obstructive sleep apnea. The examiner should answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed obstructive sleep apnea is etiologically related to active duty? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s diagnosed obstructive sleep apnea is caused or aggravated beyond the normal progress of the disorder by service-connected PTSD? The examiner is requested to explain whether there is any medical reason to accept or reject the Veteran’s theory that his PTSD symptomology interferes with his use of his CPAP machine. In answering these questions, the examiner should address the following: • the Veteran’s February 2020 testimony that PTSD symptoms such as his inability to sleep and nightmares that cause him to fight with his CPAPA mask aggravate his obstructive sleep apnea; • November 2016 VA examiner’s noting some suggestive studies between PTSD and obstructive sleep apnea but opining that medical literature has not confirmed a causative link between the two; and • VA treatment records reflecting treatment for obstructive sleep apnea, including December 2015 VA treatment records noting that the Veteran is not currently wearing his CPAP and “will need to wear daily if possible.” If an examination is needed, one should be scheduled. A complete medical rationale for all opinions expressed must be provided. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.