Citation Nr: 20044029 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 17-56 061 DATE: June 30, 2020 ORDER Entitlement to a total disability rating for the entire appeal period for other specified trauma and stressor related disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. For the entire appeal period the Veteran’s other specified trauma and stressor related disorder was manifested by symptoms such as homicidal and suicidal ideation, poor hygiene, poor concentration, isolation and avoidance, severe depression, minimal verbal interaction, lack of motivation, crying spells, confusion and memory problems, that equated in severity frequency and duration to total social and occupational impairment. 2. The Veteran’s only service-connected disability is his psychiatric disability currently rated as 100 percent disabling, thus, his claim for a TDIU is moot. CONCLUSIONS OF LAW 1. For the entirety of the appeal period, the criteria for entitlement to a total disability rating for other specified trauma and stressor related disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413. 2. The claim of entitlement to TDIU is dismissed. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1987 to November 1991. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in May 2019 and September 2019 for further development. Most recently, the appeal was remanded to obtain an addendum medical opinion as to the nature and etiology of the Veteran’s sleep apnea; a new examination assessing the current severity of the Veteran’s service-connected psychiatric disability; and, a supplemental statement of the case (SSOC). Additionally, the Veteran’s claim of entitlement to a TDIU was remanded as inextricably intertwined with the other issues on appeal. An adequate medical examination for mental conditions was associated with the file in January 2020 and an SSOC was issued in February 2020. Therefore, the Board determines that there has been substantial compliance with the September 2019 remand directives as to that claim, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). The AOJ failed to obtain an addendum opinion as to the nature and etiology of the Veteran’s sleep apnea. To the extent that the requested development was not substantially complied with, that claim is not ready for appellate review. Id. During the pendency of the appeal, the Veteran was hospitalized in excess of 21 days for other specified trauma and stressor related disorder. Temporary evaluations of 100 percent were assigned from February 26, 2018 to May 1, 2018 and from September 18, 2019 to December 1, 2019. In February 2020, the AOJ issued a rating decision increasing the evaluation of the Veteran’s other specified trauma and stressor related disorder with alcohol use disorder, cocaine and cannabis use disorder in sustained remission, from 30 to 50 percent effective January 31, 2020. Because the 50 percent rating was not a total grant of benefits, the claim for an increased rating remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to an increased rating for other specified trauma and stressor related disorder The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings are determined by applying the criteria set forth in the 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 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations 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 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). The Veteran’s other specified trauma and stressor related disorder is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9413. Under this general rating formula, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events) is rated 30 percent disabling. Id. A 50 percent rating is warranted when the evidence shows 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 effective work and social relationships. Id. 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); and inability to establish and maintain effective relationships is rated 70 percent disabling. 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; and memory loss for names of close relatives, own occupation, or own name is rated a maximum 100 percent disabling. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Having reviewed the evidence, the Board finds that staged ratings are appropriate for the Veteran’s service-connected psychiatric disorder. At the outset, the Board notes that the Veteran is already in receipt of temporary 100 percent rating from May 1, 2018 to February 26, 2018 and from September 18, 2019 to December 1, 2019. Therefore, the Board will not discuss those periods in its analysis. Background In July 2015, the Veteran and his spouse completed a function report in support of his claim for Social Security Administration (SSA) disability insurance. The report focused largely on the Veteran’s inability to complete activities of daily living since he suffered a stroke in January 2015. The Veteran’s spouse reported that the Veteran did not like to be around others since the stroke because he felt inferior. She noted that the Veteran had no social life outside of her. The Veteran did not handle stress well and had grown more depressed due to his physical disabilities. She noted that since the stroke, the Veteran had difficulty remembering things and could not pay bills or manage money. In January 2016, the Veteran underwent a comprehensive clinical psychological evaluation in connection with his claim for SSA disability insurance. Among the symptoms noted by the psychologist were depressed mood, insomnia, hyper vigilance, and suicidal ideation without intent. The psychologist found the Veteran’s overall cognitive functioning was within the average to high average range. The Veteran reported that he had lost interest in activities he used to enjoy and felt sadness all the time. The Veteran reported living at home with his spouse and two children. Dr. V.M. noted that the Veteran worked in construction for 10 years before relocating to the south. There, he worked for a pharmaceutical company for four years before he was laid off due to a reduction in work activities at the plant. After the Veteran was laid off, he suffered a stroke resulting in right side weakness and significant physical impairments. Dr. V.M diagnosed the Veteran with posttraumatic stress disorder and unspecified depressive disorder. The Veteran also reported a history of alcohol dependence, cannabis abuse, and cocaine abuse. Dr. V.M. found the Veteran’s physical problems combined with his psychiatric disabilities impacted his ability to do routine repetitious tasks, interact with peers and coworkers, respond to supervision, concentrate, persist and attend. In May 2016, a physician’s assistant penned a note excusing the Veteran from work “because he [was] permanently disabled due to medical conditions.” The note did not indicate which conditions caused the Veteran’s permanent disability. The Veteran underwent an evaluation for PTSD at the VA in July 2016. The examiner noted depression, anxiety, chronic sleep impairment, and irritable behavior. The Veteran informed the psychologist that he kept in touch with his family via phone calls about once per month. He indicated that his 20-year relationship with his wife was on again after a recent separation. He reported that he had a “quiet” relationship with his daughter, but he did not spend a lot of time with her because she was busy. His saw his stepdaughter and grandson once every few months. He indicated that he used to have friends, but they moved away. The Veteran had recently relocated and did not seek out friendships because he felt safer keeping to himself. He claimed he was fired from a pharmaceutical company in 2013 because he had difficulty grasping information about how to use a new system in doing his job. He had worked there for 3 years before he was fired. The VA psychologist found the Veteran exhibited trauma related symptoms but did not meet full criteria for a DSM-5 diagnosis of PSTD. The Veteran’s diagnosis was recorded as other trauma and stressor related disorder which the examiner assessed as causing occupational and social impairment with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner explained that despite the Veteran’s reports that he avoided other people, had trouble concentrating, and some days did not want to do anything, his mental health symptoms did not prevent him from sedentary or physical employment. The examiner noted objective psychological testing and inconsistencies in the record indicated concerns about the validity of the Veteran’s self-report consistent with embellishment of symptoms and impairment. VA treatment records from December 2017 document poor judgment related to the Veteran’s continued alcohol use despite a history of substance abuse. The Veteran stated that he’d had a panic attack approximately one month prior. The Veteran also reported that he had suicidal and homicidal thoughts without plans or attempts. In January 2018, the Veteran presented to the hospital with suicidal ideation secondary to frustration about his desire to be admitted for residential substance use disorder treatment. He firmly denied any intent and was admitted for detox. On February 26, 2018, the Veteran was hospitalized for suicidal ideation. He was admitted through May 1, 2018. Records from his hospitalization reveal the Veteran reported depression, sadness and worsening alcohol use due to a separation from his wife. The Veteran reported that he and his wife were separated due to his substance abuse, and he was living in a hotel. He reported a good relationship with his children but denied having any friendships. After his hospitalization, the Veteran moved into a domiciliary for continued treatment. Treatment records from May 2018 indicate organized, goal directed thought, fair judgment, and intact memory. In June 2018, the Veteran was found to be confused and disoriented. The Veteran described symptoms including stress anhedonia, poor focus, guilt, rage, mood swings, irritability, memory problems, panic, anxiety, racing thoughts, flash backs, paranoia, nightmares and feeling helpless. The Veteran reported that he was currently unemployed and separated from his wife of 24 years. A mental status check revealed impulsivity, poor self-control, anxiety and agitation. VA treatment records from March 2019 reveal the Veteran was divorced and had moved in with his sister. He reported feeling distance in his relationships because people did not understand him. He noted that most people did not try to engage him anymore. He stated that he tried to see people as little as possible to keep from saying the wrong thing. He described symptoms of chronic depression, avoidance, hypervigilance, insomnia, panic attacks and agoraphobia. He denied OCD type symptoms, hallucinations or suicidal ideation. In a June 2019 substance abuse service initial treatment plan note, a VA addiction therapist noted that the Veteran was isolating due to symptoms of depression and anxiety but refused to discuss his symptoms. In July 2019, the Veteran reported chronic depression, avoidance, nightmares, claustrophobia, hypervigilance, occasional panic and agoraphobia. The Veteran presented as “slowed, off balanced, and minimally verbally interactive.” His treating physician attributed his behavior to a head injury the Veteran suffered in late June. The Veteran’s sister, a nurse, was adamant that the Veteran was having an exacerbation of depression and PTSD-type symptoms. In August 2019, the Veteran’s treating physician documented that the Veteran had established substance use disorder treatment and was attending groups but had not followed up since May. The Veteran voiced complaints that he was socially isolated. The Veteran and his sister both requested he be admitted to a residential PTSD program. The Veteran was hospitalized again in September 2019 and remained admitted through December 1, 2019. On admission it was noted that the Veteran was “in need of hygiene.” He reported that his anxiety was a 10 out of 10. Psychological risk factors on admission included relationship difficulties and chronic pain. Throughout treatment the Veteran reported that his family was supportive of his recovery. The Veteran was described as “extremely motivated” and was engaged in all aspects of treatment. The Veteran showed some improvement during his hospitalization and was recommended for inpatient treatment upon release. Although the Veteran completed treatment, he was denied admission into an inpatient treatment program because he missed his discharge clearing appointment. His treating physician, who did not work with the Veteran during his hospitalization, found the Veteran was unmotivated and would not recommend him for inpatient treatment. Rather, he suggested the Veteran attend in-person group sessions at the VA. Due to COVID-19, the sessions could not be held in person and were restructured as conference calls. The Veteran reported feeling further isolated as a result. A January 2020 behavioral health outpatient progress note described the Veteran’s mood as depressed and his affect as limited. Later that month, the Veteran underwent a VA examination. The Veteran reported that he lived with his sister and they had a good relationship. He described positive relationships with his family members and children. He reported having good relationships with a few friends that he spent time with at the YMCA or his gym. He noted that he had stopped going to social clubs after getting in a few fights. His reported symptoms of anger, anxiety, hypervigilance, intrusive thoughts, and avoidance. He denied suicidal or homicidal ideations. The examiner also documented depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and difficulty in establishing and maintaining effective work relationships. The examiner found the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner specifically noted that the Veteran’s alcohol use disorder did not appear to be significantly impacting his symptoms as his alcohol use appeared to be a way for the Veteran to cope with his symptoms rather than an independent disorder. In March 2020, the Veteran’s sister contacted his treating physician. She notified the doctor that the Veteran was not making progress after two months of attending biweekly groups and working outpatient with the physician. She stated that the Veteran was extremely depressed, unmotivated, crying frequently, and appeared hopeless. That same month, the Veteran arrived for an appointment with his treating physician and was found sitting in the wrong waiting area. The Veteran admitted confusion and some memory difficulties. He reported that he was more depressed, avoided crowds, church and social gatherings, he frequently isolated himself and felt checked out when he was around family or friends. In April 2020, the Veteran was referred for a neuropsychological evaluation for concerns of memory impairment and cognitive slowing. The neurologist found the Veteran had a history of several factors that could impact cognitive functioning including prior stroke, head injury, alcohol use, PTSD, and other mental health symptoms. The neurologist recommended continued focus of the Veteran’s sobriety and mental health treatment. Analysis For the entire appeal period the Veteran’s symptoms more nearly approximate a total rating. In 2016 the Veteran reported suicidal and homicidal ideation, an examiner found him limited in his ability to interact with peers, concentrate, and respond to supervisors. His symptoms consistently showed isolation and severe depressive moods and behavior requiring two hospitalizations for mental health symptoms, and at admission for the 2019 hospitalization it was noted that he had hygiene problems and at its conclusion he could not participate in further programs because of his lack of motivation, due to his psychiatric condition. His marriage was noted to be a series of separations and reuniting until ultimately it ended in divorce. Treatment notes reported that he was minimally verbally interactive during the appeal period and his sister has reported frequent crying spells, confusion, and memory problems. While there were periods of positive contact with family, overall, the disability picture shows symptoms of such frequency, severity and duration as to warrant a total disability rating throughout the appeal period. In consideration of all the evidence of record, the Board finds that the preponderance of the evidence supports a total disability rating for the entire appeal period. 2. Entitlement to a TDIU is dismissed. The record reasonably raised a claim for TDIU. Given the decision herein, the Veteran is now in receipt of a 100 percent schedular rating for his psychiatric disability during the entire appeal period. As the Veteran was granted a 100 percent rating throughout the appeal, his claim for a TDIU may be moot. See Colayong v. West, 12 Vet. App. 524 (1999) (holding that a grant of TDIU does not moot a schedular or extraschedular claim, but a 100 percent schedular or extraschedular rating does moot a TDIU claim). However, a grant of a 100 percent schedular rating does not always render the issue of a TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, special monthly compensation (SMC) may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that a TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In the case at hand, the Veteran’s only service-connected disability is his psychiatric condition. Consequently, Bradley does not apply and the claim of entitlement to TDIU is moot and is dismissed. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, supra. In the May 2019 remand, the Board requested an addendum opinion addressing the nature and etiology of the Veteran’s obstructive sleep apnea. The Board found the August 2017 VA examiner did not adequately address direct service connection or secondary service connection based on aggravation. Although the Veteran’s OSA has a clear diagnosis and etiology and therefore does not meet the criteria for service connection under 38 U.S.C. § 1117, the examiner did not address whether the Veteran’s OSA was etiologically linked to environmental exposures during the Veteran’s service. On remand, no addendum opinion was provided, and the claim was remanded again in September 2019. Again, no addendum opinion has been associated with the record. It appears that the VA examiner determined a second VA examination was necessary. The record reveals an examination was initially scheduled while the Veteran was hospitalized. That examination was cancelled due to the Veteran’s unavailability. On January 16, 2020, an examination was requested and scheduled for February 11, 2020. The Board acknowledges that the Veteran failed to report for a scheduled VA examination. However, the Board notes that the evidence of record does not contain any letter, VA Form 119, or other document reflecting that the Veteran was properly notified of his scheduled examination. More importantly, even if notice was sent it is impossible the notice was given at least 30 days in advance of the scheduled examination. Because the Veteran was not properly notified of his scheduled examination, the Board finds good cause for the Veteran’s failure to report for his VA examinations. Thus, the appeal is remanded. The matters are REMANDED for the following action: 1. Forward the claims folder to an appropriate clinician for review and for an addendum opinion addressing the nature and etiology of the Veteran’s obstructive sleep apnea (OSA). If the examiner determines that another examination is necessary, one should be scheduled. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA is related to his active duty military service include hazardous environmental exposures during his service. The examiner is also asked to provide an opinion as to the whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s OSA is proximately due to or aggravated by his service-connected psychiatric disability. The examiner should note aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. For each opinion requested in this remand, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. 2. The Veteran must report for the examination or show good cause for failing to report. 38 C.F.R. § 3.655. If the Veteran fails to report his claim may be decided based on the evidence of record. 38 C.F.R. § 3.655 (b). If the Veteran refuses the examination or fails to report for the examination, that should be clearly documented in the record, to include evidence that the notice letter was sent to the proper address. 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman Associate 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.