Citation Nr: 21002830 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 14-05 819 DATE: January 15, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for service-connected posttraumatic stress disorder (PTSD), effective May 19, 2010, but no earlier, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The evidence demonstrates that since May 19, 2010, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, difficulty in understanding complex commands, impairment of short- and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and the various other symptoms manifested throughout the appeal period. CONCLUSION OF LAW Since May 19, 2010, the criteria for a 50 percent rating, but no higher, for service-connected PTSD, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) C 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter last appeared before the Board in July 2018, at which time the issues were remanded for further development. The Veteran and his spouse testified in July 2017 before a Veterans Law Judge (VLJ) at a Travel Board hearing at the RO, a transcript of which is of record. This hearing was before a now-retired Judge. Although given the opportunity to request another hearing by VA written correspondence in August 2020, the Veteran declined to do so by written correspondence in September 2020. Entitlement to a 50 percent rating, but no higher, for service-connected PTSD, effective May 19, 2010, is granted. As a preliminary matter, the Board notes that the Veteran was granted service connection for PTSD, at a 30 percent rating effective March 10, 2004 in a February 2005 rating decision and this rating has continued since. On April 14, 2011, the Veteran filed a claim for an increase in his PTSD rating evaluation, contending that his PSTD worsened. Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2). Thus, the applicable rating period is from April 14, 2010, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disability incurred or aggravated during service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and explain the reasons and bases for conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco, 7 Vet. App. 58. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as staged ratings. 38 C.F.R. § 4.2. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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). 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). The Veteran’s PTSD is rated under 38 C.F.R. § 4.130 DC 9411. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Board concludes that the evidence demonstrates that the Veteran’s symptoms most closely approximate the level of impairment associated with a 50 percent rating since May 19, 2010. The record reflects that on May 19, 2010, the Veteran was seen for a private psychiatric intake evaluation in which the examiner noted that the Veteran presented with symptoms of hypervigilance, hearing things at times, difficulty sleeping, worsening of nerves, anxious mood and affect, and social and occupational impairment. A June 2010 mental health VA medical center (VAMC) treatment record reflects the examiner’s note that the Veteran reported being tired, stressed, and faced criticisms at work. The examiner noted that the Veteran also discussed his hobbies such as golf, playing pool, and playing cards online. The examiner further noted that the Veteran reflected on his marriage being good for him as he explained he was grieving the death of his second wife when he met his current wife and his wife and grandson lifted him up. The examiner also noted that the Veteran appeared his stated age, presented with good grooming, was well-dressed, calm, pleasant, articulate, and cooperative. He had speech within normal limits, rational thoughts, a better mood, and congruent affect. The Veteran denied suicidal or homicidal ideations and did not endorse any psychotic features. A December 2010 VAMC record reflects that the Veteran reported ongoing anxiety, especially when driving long distances. He stated he was bothered by petty arguments, insults and lazy co-workers, but denied any recent altercations. He reported that his grandson and his wife moved in with him in October 2010. A March 2011 record reflects that the Veteran reported doing well overall and that he had not had a verbal or physical confrontation with his supervisor. He reported not having much family stress at home. The examiner noted that the Veteran appeared his stated age, presented with good grooming, was well-dressed, calm, pleasant, articulate, and cooperative. He had speech within normal limits, rationale thoughts, a better mood, and congruent affect. The Veteran denied suicidal or homicidal ideations and psychotic features. A May 2011 treatment record reflects that the Veteran presented with clear thought processing, stable judgment, and intact impulse control. He reportedly handled work frustrations satisfactorily. A later May 2011 record reflects the that the Veteran reported recent increase in anxiety and irritability, and mood swings due to work stress and extra work duties, but that he had not had any verbal or physical confrontations. The Veteran underwent a VA examination in August 2011. The examiner described the Veteran’s psychiatric impairment as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although general functioning satisfactorily with routine behavior, self-care and normal conversation supported by symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss such as forgetting names, directions or recent events. Although the examiner found that the Veteran was currently having difficulty in social and occupational relationships, he was able to work. The examiner further found that the Veteran alluded to passive suicidal thoughts and being depressed a good part of the time. The examiner reported that the Veteran described symptoms of nightmares, flashbacks, withdrawal because he trusted no one, impatience, and rage, especially toward authority. He described the severity of the symptoms as moderate and constant, continuous or ongoing. The examiner noted that the Veteran indicated that symptoms affect his total daily functioning, which resulted in him taking a lower paying position below his educational ability. The examiner reported that the Veteran could not drive on highways, avoided heights and closed-in spaces and took sleeping pills each night. The examiner noted that the Veteran did not have a history of violent behavior and the Veteran did not indicate a history of suicide attempts. The examiner found that the Veteran had an anxious affect and mood, impaired attention and/or focus, poor recall of details and dates, panic attacks occurring less than once per week (attacks manifested by shortness of breath, increased heart rate and fear of impending doom), demonstrated signs and suspiciousness (such as not trusting anyone), and a history of intermittent hallucinations, including hearing footsteps and shadows at night and thinking someone had entered the home. The examiner noted that the obsessive-compulsive behavior was present but was not severe enough to interfere with routine activities, exemplified by ritually checking the house before sleep and listening to see whether he heard anything suspicious. In a January 2012 addendum opinion, the examiner opined that the Veteran began abusing alcohol as part of recreational drinking and symptoms of alcohol abuse and PTSD are co-morbid and mutually aggravating. An August 2011 VAMC treatment record reflects the examiner’s note that the Veteran reported doing well. A November 2011 treatment record reflects the examiner’s note that the Veteran expressed frustration because of his brother financially taking advantage of him. A later November 2011 VAMC treatment record reveals the examiner’s note that the Veteran’s PTSD symptoms appeared to be relatively well controlled. A February 2012 VAMC treatment record reflects that the Veteran reported doing well overall and that he decided to retire from his job at the end of the year. April, March, May and June 2012 VAMC treatment records reflect that the Veteran reported doing well overall, but had ongoing work stress. The Veteran underwent a VA examination in July 2012 to assess the severity of his psychiatric disability. The examiner summarized the Veteran’s level of occupational and social impairment as total occupational and social impairment and indicated that the occupational and social impairment is attributable to PTSD, as his alcohol abuse in in remission presenting with symptoms of anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to establish and maintain effective relationships. The examiner remarked that at the time of the examination, the Veteran was considered to be unable to perform social and occupational tasks and getting overly irritable at work over small items. The examiner noted that the Veteran described feelings of hypervigilance, and paranoia at work, not interacting well with others, having chronic sleep problems, trouble concentrating, emotional dysregulations, nervousness, poor interactions with others, poor judgment about interpersonal issues, poor behavioral controls and poor thought processing. An August 2015 record reflects the examiners note that the Veteran is not currently on any psychiatric medications and reports feeling more irritable and easily agitated. The examiner noted that the Veteran reported having a supportive wife. A February 2016 record reflects that the Veteran enjoyed spending time with his great grandson, had a stable mood, and expressed manageable irritability at times. A November 2017 record reveals that the Veteran has some recurrent issues that related to losing classmates and then dealing with thought of his own demise but no suicidal or homicidal ideation, plan or intent. A June 2018 record reflects the Veteran’s report that with losses, he had some anxiety related to concerns of his own death. An August 2018 record reflects the examiners note that when the Veteran did not take his medication regularly, his irritability returned, and he ended up with an angry response and said things he later regretted. The examiner further noted that the Veteran reported some conflict with his wife but being able to work it out. The Veteran testified in regard to his PTSD during the July 2017 Board hearing. The Veteran testified that he has to go to treatment for his PTSD about every two months, he had anger issues, and sometime his friends would say or do something, and he lashed out at them. He stated that he took medication to control his mood swings and if he did not take the medication he lashes out, he had panic attacks. He also reported that he could not drive on highways, he felt that his nerves were shot, he could not stand in close quarters, and that going up in elevators and heights caused him panic attacks. Reportedly, he had to get away from loud noises and arguments because they irritated him. He further testified to having short-term and long-term memory impairments, and stated that he forgot to complete tasks quite a bit. The Veteran further testified that he last worked four or five years prior, at the post office where he had troubles. He described an incident when the police were called after the Veteran took a broom from his coworker. The Veteran also testified that he would snap at his coworkers about his cleaning equipment. The Veteran testified that he had to leave work because of these issues and because his back went out on him. The Veteran further testified about his home life. He stated that his grandson and grandson’s family lived with him, he got upset with them a lot, and he would just walk away and isolate himself. The Veteran testified that the additional people had been living with him for six or seven months and since them moving in, he was more irritable and short-tempered; he stated that he does not get along with them, especially with the kids. The Veteran’s wife testified that when she gave him a complex task, he could not do it, that he forgot things, and “picked” at his toddler grandson. She further testified that they did not have a social life, but he did have one or two friends. The Veteran underwent another VA examination in March 2019. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner found that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner further found that the Veteran had no evidence of psychosis, impaired judgement, memory impairments, delusions or hallucinations, neglect of personal hygiene, obsessive rituals, gross impairment of thought process or communication, difficulty with effective work and social relationships, or impaired impulse control. The examination revealed fair insight, intact judgement, and normal speech. The Veteran was able to follow complex commands, had demonstrated no evidence of psychomotor agitation or retardation. The Veteran denied suicidal/ homicidal ideation intent, plan or attempts. The examiner noted that the Veteran continues to be married to his wife, for almost thirty years. The Veteran expressed sadness and frustration about not seeing his great grandson, and that he was learning to approach the child’s mother in a non-confrontational manner so that she will allow him to visit the child, which the examiner noted that it seems to be working so far. The examiner noted that the Veteran reported that his is recreational activities have been limited because his back problems. The examiner noted that the Veteran is learning to just walk away from things and not get so mad; the Veteran denied any physical altercations. The Veteran’s wife reported that he becomes short-tempered and snaps at her if he decreases or stops taking his medication. After reviewing the evidence, the Board finds that the earliest date that the claimed increase in disability occurred was factually ascertainable based on all evidence of record is May 19, 2010, the date of the private psychiatric intake evaluation; the effective date is the date such increase in symptoms occurred. 38 C.F.R. § 3.400(o)(2). The preponderance of the evidence dated since May 19, 2010, including the Veteran’s lay statements, his wife’s lay statements, a private treatment record, and VA records and examinations, the evidence demonstrates that the Veteran’s PTSD disorder has been manifested by symptoms that predominately correspond to those contemplated by a 50 percent rating. During this time period, the evidence indicates that his symptoms have consistently included panic attacks, sleep impairments, anxiety, depression, memory impairment, difficulty understanding complex commands, increased anger and irritability, disturbances of motivation and mood, and difficulty establishing and maintaining work and social relationships. Although the August 2011 and March 2019 VA examiners described the Veteran’s level of occupational and social impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as contemplated by a 30 percent rating, the Board finds that the severity and frequency of the Veteran’s predominating symptoms manifest to occupational and social impairment with reduced reliability and productivity as contemplated by a 50 percent rating. The Board has also considered that Veteran’s symptoms of hypervigilance, and paranoia at work, emotional dysregulations, and nervousness. The Board finds that such a rating also accounts for these symptoms in light of the factual context of such symptoms demonstrated in the records, particularly in the July 2012 VA examination. The preponderance of the evidence, however, does not indicate that an even higher, 70 percent rating is warranted at any time during the appeal period. In so determining, the Board acknowledges the medical and lay evidence reflecting intermittent symptoms that would meet the criteria for a 70 percent rating. Specifically, the examiners and the Veteran also noted symptoms as described in a 70 percent rating such as suicidal ideation, obsessional rituals, difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. For example, the August 2011 noted that the Veteran alluded to passive suicidal thoughts and the June 2018 treatment record reflects his report of anxiety triggered by concerns of his own death. However, the evidence demonstrates that outside of these two notes, the Veteran has consistently denied suicidal or homicidal ideations. Further, the August 2011 VA examiner noted that the Veteran’s obsessive-compulsive behavior is present but explicitly found that it is not severe enough to interfere with routine activities. Subsequent VA treatment records and examination reports, to include the most recent March 2019 examination, showed no evidence of obsessive compulsive behaviors. Regarding the notations of difficulty adapting to stressful circumstances, the Board highlights the Veteran’s own statements describing his use of different strategies to deal with stressful situations, to include walking away or utilizing a nonconfrontational approach. Although the July 2012 VA examiner noted the Veteran had an inability to establish effective relationships, the Veteran has consistently reported maintaining good relationships with friends and family members, to include his marriage of over 30 years. The evidence also includes the Veteran’s report of increased irritability and anger, especially at work. However, his described incidents do not rise to the level to more closely approximate impaired impulse control. He has consistently denied any incidents involving any physical altercations or violence. Thus, although the Veteran experienced irritability at work, but for the broom incident, the manifestation of his symptoms did not result in such unprovoked irritability with periods of violence as contemplated by a 70 percent rating. The Board also notes that the evidence reflects the Veteran’s May 2010 and August 2011 reports of intermittent hallucinations, and acknowledge that this symptom is contemplated by a 100 percent rating. However, the Veteran’s subsequent treatment records and examinations are negative for any further reports of hallucinations, or any objective evidence of psychotic features. As such, the record does not demonstrate the Veteran’s report of hearing things were of such severity and frequency to be persistent delusions or hallucinations as contemplated by a 100 percent rating. Further, a rating of 100 percent is also not warranted, as the evidence does not reflect the Veteran exhibited gross impairment in thought processes or communication, grossly inappropriate behavior, is a persistent danger of hurting self or others, has an intermittent inability to perform activities of daily living, is disorientation to time or place, or has memory loss for names of close relatives, own occupation, or own name causing a total occupational and social impairment. Essentially, the preponderance of the evidence supports a finding that the severity, frequency, and duration of the Veteran’s PTSD symptoms meet the criteria for an increased rating of 50 percent, but no higher, effective May 19, 2010, but no earlier. The Board has considered the benefit-of-the-doubt doctrine in reaching this determination, but finds that the evidence does not support an even higher rating at any point during the period on appeal. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea, and claims to have experienced related symptoms during service. During the July 2017 Board hearing, the Veteran testified that while in the military, he would stop breathing while he was asleep and experienced sleep impairments during his service in Vietnam. He essentially stated that he did not seek treatment during service because he thought it was normal. The Veteran underwent a VA examination for his sleep apnea in March 2019. The examiner diagnosed the Veteran with obstructive sleep apnea and opined that the Veteran’s obstructive sleep apnea is less likely than not incurred in or caused by the claimed in-service sleep disturbances. The examiner acknowledged the Veteran’s reports of in-service sleep disturbance, but rationalized per his 1969 discharge date, that1 there was a large gap of time from 1969 to early 1970s until he was actually diagnosed the disorder in 2008. The Board notes that the lack of contemporaneous medical records does not serve as an absolute bar to the service connection claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that the examination is inadequate as the examiner seems to have based the opinion on a lack of contemporaneous medical records. The Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Id. Additionally, in light of the Veteran’s testimony and VA records noting symptoms such as chronic sleep impairment, a remand is required to obtain an opinion as to whether the Veteran’s diagnosed obstructive sleep apnea is secondary to his service-connected PTSD. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The matter is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records and associate with the claims file. 2. After the above development is complete, obtain an addendum opinion regarding the nature and likely etiology of the Veteran’s sleep apnea. The claims file must be made available and reviewed by the examiner in conjunction with the examination. An in-person examination may be scheduled only if the examiner deems it necessary and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should address the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is related to his military service. b. Whether it is at least as likely as not (a 50 percent or better probability) that it was caused or aggravated by his service-connected PTSD? The examiner should consider the Veteran’s lay statements about having sleep apnea while he was in the military, notably the July 2017 Hearing Transcript. The examiner should cite to the medical and lay evidence of record and explain the rationale for all opinions given. (Continued on the next page) If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.