Citation Nr: 20005113 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 11-30 767 DATE: January 23, 2020 ORDER The claim for rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and depression is denied. REMANDED The claim for service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The claim for service connection for hypertension (high blood pressure or HBP), to include as a result of herbicide agent exposure (Agent Orange) and secondary to PTSD and depression is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s PTSD symptoms have not more closely approximated occupational and social impairment with deficiencies in most areas; or worse. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD and depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to June 1969, to include service in the Republic of Vietnam. He was awarded the Purple Heart and Combat Infantryman Badge among other awards. This matter comes to the Board from rating decisions of February 2009 and May 2014. In May 2016, the Veteran testified before the undersigned Veterans Law Judge. In addition, in May 2016 the Veteran testified before the decision review officer (DRO) at his regional VA office (RO). In February and August 2016, the Board remanded the Veteran’s claims for additional development, including VA examinations and medical opinions for PTSD, hypertension, OSA conditions, and updated medical records. As discussed in the remand section of this decision, the Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with all remand directives concerning the claim for service-connection for OSA, and further development is necessary for his OSA claim. See Stegall v. West, 11 Vet. App. 268, 271(1998). Increased Rating Rating in excess of 50 percent for PTSD and depression is denied. A February 2009 rating decision granted service connection for the Veteran’s PTSD and depression. An evaluation of 50 percent was initially assigned effective August 19, 2008, the date the Veteran’s claim was initially received. The Veteran perfected his November 2011 appeal to the Board. He testified at a Board hearing that his PTSD symptoms has worsened since his last 2009 VA examination. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). How the psychiatric symptomatology impacts social and occupational functioning is the prime focus of the rating evaluation. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms (listed and unlisted) did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms have most closely approximated the symptoms and level of impairment associated with a 50 percent rating during the course of this appeal. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating is warranted when a psychiatric disability causes 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 such as, 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. Id. A 70 percent rating is warranted when a psychiatric disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when a psychiatric disability causes 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In November 2008, the Veteran underwent a VA psychiatric examination at which it was noted that the Veteran’s retirement in 2001 had resulted in his psychiatric becoming worse. The examiner stated that the Veteran’s affect was almost masklike, and he appeared depressed and downcast. There was no gross impairment of thought process or communication; delusions and hallucinations were denied; and eye contact was fair. The Veteran specifically denied having suicidal or homicidal thoughts ideation plans or intent; he was able to maintain minimal personal hygiene and other basic activities of daily living; he was oriented to person place and time; there was no evidence of memory loss or impairment; and obsessive or ritualistic behavior was not in evidence although the Veteran reported being constantly preoccupied and ruminating about experiences in Vietnam. The Veteran denied the presence of panic attacks however he noted that he was constantly anxious, and his anxiety interfered with his concentration. There was no impairment of impulse control. Sleep was impaired with difficulty falling asleep. The examiner suggested the Veteran’s PTSD was moderate, noting reduced reliability and productivity. The Veteran testified at a Board hearing in 2016, but did not significantly delve into his psychiatric symptomatology as it was agreed that he would be scheduled for a new exam. Upon remand, the Veteran was afforded a VA psychiatric examination in May 2018. The examiner confirmed the diagnosis of PTSD and major depressive disorder (MDD). The examiner opined that the Veteran’s current level of occupational and social impairment related to mental health was best described as causing reduced reliability and productivity. That is, the medical professional found the Veteran’s psychiatric symptoms to be most consistent with a 50 rating. The Veteran’s psychiatric symptoms were noted to include: depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in adapting to stressful circumstances, including work or a worklike setting and disturbances of motivation and mood. Regarding social impairment, the VA examiner reported that the Veteran continues to live with his wife of 51 years in the house he built. He stated that his three adult children live within 10 minutes from his home and that he sees each of them often. He noted that he has five grandchildren, the youngest age 10 and the oldest age 26. He stated that he and his wife babysit for the youngest and that the older grandchildren “drop in whenever they want”. The Veteran described his relationships with his family as “very close” and noted that his wife is supportive and that she is patient in putting up with him. Regarding occupational impairment, the examiner reported that the Veteran has been unable to work since his hearing loss had progressed. He described working as a carpenter and handyman doing “small jobs” and noted, “it would just take me a long time to get things done”. He reported that his difficulty concentrating made staying on track with jobs challenging. The Veteran reported that he now spends his time “constantly staying busy”. He reported that this includes a great deal of walking on his 20 acres. The Veteran reported that from the time my feet hit the floor in the morning I am doing something - picking up brush, sticks, or other chores. The Veteran’s testimony and VA medical treatment records show that he was treated for his mental health during the appeal period and did not show sustained increase in severity of symptoms any worse than those presented on VA examinations throughout the appeal period. Upon review of the record, including the VA and private treatment records, May 2018 VA examination, and the Veteran’s testimony, the Board notes that the record reflects that the Veteran’s PTSD disorder was manifested by some symptoms associated with a 30 percent rating such as: depressed mood, anxiety, and suspiciousness, The Veteran also has a symptom associated with a 50 percent rating, which includes: disturbances of motivation and mood. In addition, the Veteran has a symptom associated with a 70 percent rating such as, difficulty in adapting to stressful circumstances, including work. As described, the Veteran has clearly experienced psychiatric symptomatology as a result of his service-connected PTSD and depression. However, the totality of the record does not establish that the Veteran’s service-connected psychiatric symptomatology resulted in occupational and social impairment with deficiencies in most areas, much less total occupational and social impairment. The 2018 VA examiner reported that the Veteran described his relationships with his family as “very close”, he lives with his wife of 51 years, babysits his younger grandchild and his older children “drop into his home” often. The Veteran reported that he is primarily unable to work due to the progression of his hearing loss. Moreover, the Veteran has never been shown to evidence most of the symptoms severe enough to warrant a 70 percent rating as a result of his PTSD and depression, including obsessional rituals which interfere with routine activities; 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; special disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. The Board notes that a 70 percent rating contemplates an inability to establish and maintain effective relationships, which is clearly not the case as evidenced by the relationships with his wife, adult children and grandchildren, as he reported to the 2018 VA examiner. As such, the criteria for a 70 percent rating for the Veteran’s PTSD and depression have not been shown. The Board also acknowledges the Veteran’s statements that his PTSD symptoms are of such severity as to warrant an increased evaluation. The Veteran, as a lay person, is competent to report some things, including symptoms of his PTSD and depression that come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Disability ratings, however, are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran’s assessments of the severity of his PTSD and depression. While the Veteran may have experienced a symptom contemplated by a 70 percent rating, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms (listed and unlisted) resulted in the level of impairment required for at least a 70 percent rating. In fact, the 2018 examiner also noted symptoms that approximate the 30 percent rating. However, the Board finds that the Veteran’s symptoms (listed and unlisted) most closely approximate the symptoms contemplated by the 50 percent rating supported by the May 2018 VA examiner’s opinion, and less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Accordingly, the Veteran is not entitled to a rating in excess of 50 percent for his PTSD and depression at any time during the appeal period. REASONS FOR REMAND 1. Service connection for OSA, to include as secondary to service-connected PTSD, is remanded. The Veteran’s representative, on behalf of the Veteran perfected an appeal to the Board in August 2019. In that appeal, the representative raised questions as to the adequacy of the June 2019 OSA VA opinion referenced in the July 2019 supplemental statement of the case (SSOC). Specifically, the Veteran contends that the VA examiner did not properly address the peer reviewed scientific literature he submitted in support of his claim (“The Journal of Sleep Medicine”). Of note, the Board issued a February 2019 remand directive requesting that the examiner consider this literature submitted by the Veteran because it addressed a relationship between PTSD and sleep apnea. As discussed below, the Board finds that the Veteran’s contentions have merit regarding this issue. In the June 2019 VA opinion the examiner provided a negative nexus opinion. However, in his supporting rationale he references an unnamed study, and did not specifically address the literature submitted by the Veteran. Since, the examiner’s rationale did not specifically address the Veteran’s supporting literature of record, it appears that he failed to comply with the directives in the February 2019 Board remand. As such, an addendum opinion is necessary in order for the examiner comply with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Service connection for hypertension as secondary to herbicide exposure. The Veteran is seeking service connection for hypertension. In 2016, a VA examiner specifically considered the findings by the “Committee to Review the Health Effects in Vietnam Veterans of exposure to Herbicides” 2010 report. The examiner reported that the update states that hypertension is categorized as having limited or suggestive evidence only. The VA examiner reasoned that absent a finding that hypertension is an Agent Orange presumptive disease, the evidence must support herbicide agent exposure as constituting at least half the attributable risk. The examiner concluded that based on the statement in the report, it does not. However, since that time, the National Academies of Sciences, Engineering, and Medicine in its most recent Agent Orange update moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. See Veterans and Agent Orange Update 11 (2018). The standard for this new category is epidemiologic evidence is sufficient to conclude that there is a positive association. That is, a positive association has been observed between exposure to herbicides and the outcome in studies in which chance, bias, and confounding could be ruled out with reasonable confidence. For example, if several small studies that are free of bias and confounding show an association that is consistent in magnitude and direction, there could be sufficient evidence of an association. There is sufficient evidence of an association between exposure to the chemicals of interest and hypertension. This is sufficient to trigger VA’s duty to assist, and the issue of service connection for hypertension must be remanded in order to obtain a medical opinion of record. The matters are REMANDED for the following action: 1. The claims file should be sent the June 2019 VA examiner (if available) or an appropriate examiner to offer an addendum opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea: (a.) is caused by the Veteran’s service-connected PTSD, or (b.) is aggravated by (made worse) by the Veteran’s service-connected PTSD. Why or why not? In offering the opinion, the examiner is asked to consider the medical literature submitted by the Veteran addressing a relationship between PTSD and sleep apnea, specifically, the Journal of Sleep Medicine article submitted by the Veteran in support of his claim. Also consider the representative’s contention that the article is a collaboration between VA and DOD investigators, and the work stands on a foundation of 58 prior studies dating as far back as 1993. The need for an examination is left to the discretion of the examiner. 2. Obtain a medical opinion to determine the etiology of the Veteran’s hypertension. If the Board’s questions cannot be answered without a physical examination, one should be scheduled. The examiner should answer the following question: Is it at least as likely as not (50 percent or greater) that the Veteran’s hypertension was caused by his presumed exposure to herbicide agents during service? Why or why not? In so doing, the examiner should review Veterans and Agent Orange Update 11 (2018), in which the National Academies of Medicine concluded that there was sufficient evidence of an association between exposure to herbicide agents and hypertension. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.