Citation Nr: 21000370 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-30 919 DATE: January 5, 2021 ORDER Entitlement to an increased rating from 50 to 70 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for a back disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment reflecting deficiencies in most areas 2. The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for PTSD have 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. 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to November 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to an increased rating from 50 to 70 percent for posttraumatic stress disorder (PTSD). This case was previously before the Board in January 2019, at which point a 50 percent rating was granted for PTSD. The Veteran subsequently appealed the Board's January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020 the Court issued a joint motion for partial remand (JMPR) setting aside the Board’s decision. In doing so, the Court held that the decision was inadequate as the Board did not provide an adequate statement of reasons and bases for its conclusion that the Veteran’s reports of suicidal ideations were not of the frequency or duration that would warrant a 70 percent rating. Additionally, the Court found that the Board erred by considering the Veteran’s global assessment of functioning (GAF) scores. The Court also found that the Board failed to provide an adequate statement of reasons or bases for finding that the Veteran did not meet the 70 percent rating criteria. Finally, the Court found that the Board failed to address whether the evidence of record demonstrated that the Veteran has impairment in work, school, or social functioning. Based on the aforementioned, the Court concluded that a remand was warranted for the Board to provide an adequate statement of reasons and bases as to whether a rating in excess of 50 percent is warranted. The claim is now returned to the Board for such action. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent. 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). Under the General Formula, a 50 percent disability rating will be assigned where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent disability rating applies where the evidence shows occupational and social impairment reflecting 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. A 100 percent disability rating is assigned where the evidence shows there is 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. 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(b). Also, the factors listed in the rating criteria are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme. Rather, the determination should be based on all of a Veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002); see also 38 C.F.R. § 4.126(a). “[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, 116-17 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 Based on a review of VA examination reports and treatment records, the Board finds that a disability rating of 70 percent is warranted as the Veteran’s overall disability picture manifests with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, the Veteran was afforded a VA mental disorders examination in January 2016. The VA examiner opined that the Veteran’s symptoms included: irritability with anger outbursts, difficulty concentrating, hypervigilance, exaggerated startle response, disturbances of motivation and mood, chronic sleep impairment, anxiety, and depressed mood. (01/07/2016, C&P Exam, p. 1, 8). During the examination, the Veteran denied current suicidal ideations but reported a history of suicidal ideations and previous inpatient psychiatric treatment for suicidal ideations. (01/07/2016, C&P Exam, p. 2, 8). The examiner opined that the Veteran’s PTSD symptoms caused 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. (1/7/2016, C&P Exam, p. 2, 8). The examiner additionally noted a diagnosis of alcohol dependence and opined that the Veteran drank to “ameliorate his anxiety and depressive symptoms . . ..” (1/7/2016, C&P Exam, p. 1, 9). The examiner opined that alcohol dependence resulted in the Veteran giving up “important social, occupational or recreational activities,” and indicated that the cumulative effect of the Veteran’s PTSD and alcohol dependence symptomology “prevent” him from socializing and interferes with his relationships. (1/7/2016, C&P Exam, p. 2). The Veteran submitted private medical records from Florida Hospital documenting his inpatient treatment for suicidal ideations. At the time of his admission he reported constant suicidal ideation for the last month that began after he relapsed on alcohol. He reported that he was no longer able to function properly due to his PTSD symptoms and alcohol consumption. (10/20/2015, Medical Treatment Record, p. 8, 10). In the Veteran’s VA medical records he reported an increase in his symptoms following his graduation from college. He felt that studying kept his mind occupied, which helped to reduce his symptoms. However, since he finished his coursework he had nothing to keep his mind occupied, which caused a flare in his symptoms. He reported that he was exercising more and joined a bowling league to try to distract himself. (3/25/2019, CAPRI, p. 254). After a review of the evidence, the Board finds that the Veteran’s reported symptoms are consistent with a finding of occupational and social impairment with deficiencies in most areas. During the relevant period, the Veteran’s symptoms included suicidal ideation, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and impaired impulse control. Such symptoms are contemplated by the 70 percent evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, the Board finds that his PTSD disability picture more nearly approximates a 70 percent evaluation. A higher disability rating of 100 percent is not warranted here, as evidence does not demonstrate that the Veteran has total occupational and social impairment. In this regard, the Veteran has maintained a relationship with his spouse and participates in a bowling league, indicating that his symptoms to not result in total social impairment. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. While the Veteran was treated on an inpatient basis for suicidal ideations in 2015, he denied an intent or a plan involving self-harm. Therefore, the Board finds that a higher rating of 100 percent is not warranted. In sum, the Board finds that the totality of the evidence demonstrates that the disability picture for the Veteran’s PTSD warrants a 70 percent rating. As total social and occupational impairment has not been shown, a 100 percent evaluation is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities preclude substantially gainful employment. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25.    Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).    In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. The Veteran was last employed in February 2018 by Allegiant Airlines as a material handler. This employment lasted approximately a month and he earned less than $700 in total. Prior to his employment with Allegiant Airlines, he was last employed in August 2012 by FedEx as a carrier. (7/8/2020, VA 21-8940, p. 1); (11/10/2020, SSA/SSI Letter, p. 3). For the period on appeal, service connection was in effect for the following disabilities: a left hip replacement (70 percent from September 20, 2019, 30 percent from July 1, 2015, and 100 percent from May 7, 2014), PTSD (50 percent from July 6, 2014), bilateral pes planus (30 percent from July 6, 2014, and zero percent from December 1, 2006), limitation of flexion of the left hip (20 percent from December 6, 2011, to May 7, 2014), impairment of the left hip (20 percent from December 6, 2011, to May 7, 2014, and 10 percent from December 6, 2006), diabetes mellitus type II (20 percent from July 6, 2014), degenerative joint disease of the thoracolumbar spine (20 percent from September 1, 2019, 100 percent from July 5, 2019, and 20 percent from December 1, 2006), limitation of extension of the left hip (10 percent from December 6, 2011, to May 7, 2014), and tinnitus (10 percent from December 6, 2011). His combined rating is 90 percent from July 1, 2015, 100 percent from July 5, 2019, 90 percent from September 1, 2019, and 100 percent from September 20, 2019. As such, the Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a). Therefore, the Board must determine if the aforementioned service-connected disabilities preclude substantially gainful employment.   In this regard, the Veteran submitted a private vocational examination wherein a private vocational expert opined that the Veteran is “at least as likely as not be precluded from securing and following all substantially gainful employment due to his service-connected back, left ankle, left hip, and bilateral foot conditions.” (11/10/2020, Medical Treatment Record, p. 7). The expert indicated that the Veteran would be unable to sustain an adequate pace and productivity due to severe pain and need for unscheduled breaks. Additionally, the Veteran’s service-connected disabilities preclude his ability to sit for prolonged periods and to stand or walk for longer than 10 to 25 minutes. Finally, the Veteran would be unable to sustain his concentration for two consecutive hours. (11/10/2020, Medical Treatment Record, p. 7-8). Based on the competent and probative medical and lay evidence, the Board concludes that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, a TDIU is warranted.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a back disability is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This case was previously before the Board in January 2019, at which point the Veteran’s claim was denied on the merits. The Veteran subsequently appealed the Board's January 2019 decision to the Court. In February 2020 the Court issued a joint motion for partial remand (JMPR) setting aside the Board’s decision. In doing so, the Court held that the decision was inadequate as the Board relied on an August 2015 VA examination which did not adequately address additional range of motion loss during flare-ups. The Court concluded that a new VA examination that provides an estimate as to loss of range of motion during flare-ups was warranted. The issue is now returned to the Board for such action. Based on the February 2020 JMPR, the Board finds that the claim must be remanded for a new VA examination that complies with Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). 2. Entitlement to service connection for sleep apnea is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This case was previously before the Board in January 2019, at which point the Veteran’s claim was denied on the merits. In denying the claim, the Board concluded that the Veteran did not have a current diagnosis of sleep apnea. (1/17/2019, BVA Decision, p. 8). The Veteran subsequently appealed the Board's January 2019 decision to the Court. In February 2020 the Court issued a joint motion for partial remand (JMPR) setting aside the Board’s decision. In doing so, the Court held that the decision was inadequate as the Board failed to consider a June 2017 VA sleep medicine note which contained a diagnosis of “mild obstructive sleep apnea.” (3/25/2019, CAPRI, p. 201). Additionally, the Court noted that the Board failed to consider whether the Veteran was entitled to service connection for sleep apnea as secondary to hypertension. The Court noted a sleep medicine report which indicated that the Veteran has at least three risk factors for sleep apnea, including his service-connected hypertension disorder. (3/25/2019, CAPRI, p. 234). The Court concluded that a remand was warranted for the Board to address the aforementioned theory of service connection. The issue is now returned to the Board for such action. As no VA examiner has opined whether the Veteran’s sleep apnea is at least as likely as not proximately due to hypertension, the Board finds that the claim must be remanded for a new VA examination and opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from June 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. Schedule the Veteran for a VA examination for sleep apnea. The examiner must review the claims file and provide a response to the following: (a.) Is sleep apnea at least as likely as not proximately due to hypertension? (b.) Is sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by hypertension? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.