Citation Nr: 21061925 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-33 420 DATE: October 5, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) prior to December 11, 2019, is granted. Entitlement to a rating greater than 70 percent for PTSD is denied. REMANDED Entitlement to an initial compensable rating for tension headaches is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD was manifested by deficiencies in most areas such as work, judgment, thinking or mood but not by total occupational and social impairment. CONCLUSIONS OF LAW The criteria for entitlement to a 70 percent rating for PTSD for the period prior to December 11, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. The criteria for entitlement to a rating greater than 70 percent for PTSD at any time during the appeal period have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1990 and February 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in March 2019 for VA examinations assessing the current severity of the Veteran's PTSD and headaches, a medical opinion as to the nature and etiology of the Veteran's obstructive sleep apnea, and adjudication of the Veteran's TDIU claim. The Veteran was afforded a VA examination for PTSD in December 2019. The Board finds the December 2019 examination is adequate. Thus, the Board determines that there has been substantial compliance with the March 2019 remand directives, and further remand is not required as to that claim. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2020, the AOJ also issued a rating decision assigning a 70 percent evaluation for PTSD effective December 11, 2019. Because this rating was not a total grant of benefits, the claim for an increased initial rating remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). The Veteran underwent a VA examination for headaches in December 2019. The Board finds this examination was inadequate. Similarly, the December 2019 medical opinion associated as to the etiology of the Veteran's sleep apnea was inadequate. To the extent that the requested development was not substantially complied with regarding the claims for an increased rating for headaches and service connection for sleep apnea, those claims are not ready for appellate review and are addressed in the Remand portion of this decision. See Stegall v. West, supra. Entitlement to a rating greater than 50 percent rating for PTSD prior to December 11, 2019, and a rating greater than 70 percent thereafter. 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). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD was evaluated under DC 9411. 38 C.F.R. § 4.130. The General Rating Formula for Mental Disorders provides that 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). Background The Veteran was service connected for PTSD effective August 30, 2016 and assigned a 50 percent rating as of that date. The Veteran appealed his initial rating. In a subsequent rating decision, the RO increased the Veteran's rating to 70 percent effective December 11, 2019. After review of the record, the Board finds that a 70 percent rating, but no higher, is warranted for the entire appeal period. Turning to the evidence, VA treatment records from September 2016 indicate the Veteran exhibited poor to fair judgment. He reported suicidal thoughts and plans with no intent. He also reported that he and his wife had separated due to his drinking. VA treatment records from October 2016 note the Veteran's reports that he was having nightmares, feeling irritable, nervous, depressed, socially avoidant and checking his doors and windows throughout the day and night. He endorsed relationship conflict due to his symptoms. Veteran reported using alcohol to deal with his feelings and drinking in excess of eight beers to fall asleep, which also lead to being late for work some mornings. The Veteran was afforded a VA examination in January 2017. The Veteran was diagnosed with PTSD, Alcohol induced depressive disorder, and Alcohol use disorder. The examiner found the conditions were comorbid and causally related to each other. The Veteran's symptoms overlapped and exacerbated each other and were otherwise intertwined and could not be separated from one another. The examiner noted irritable behavior and angry outbursts, problems with concentration, sleep disturbance, hypervigilance and an exaggerated startle response. The Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Ultimately, the examiner opined the Veteran's PTSD 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. In December 2019, the Veteran underwent a VA examination to assess the severity of his PTSD. The examiner opined the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms including chronic sleep disturbance, nightmares, agitation, short temper, intrusive memories of trauma exposure, avoidance of triggers related to memories of trauma, persistent negative beliefs about others or the world, self-blame, negative emotional state, diminished interest, panic attacks, hypervigilance, exaggerated startle response, poor concentration with related memory problems, estrangement, and anxiety. A mental status exam revealed the Veteran's dress was appropriate, and he exhibited good personal hygiene. His thought process was logical, and goal directed. He was able to track the conversation during the interview and provide a coherent history. Judgment and insight were intact. His speech pattern was within normal limits. He was able to make and maintain good eye contact. His mood was dysphoric, and his affect was agitated. He reports passive suicidal ideation. There was no evidence of homicidal ideation, visual hallucinations, auditory hallucinations, or thought disorder. The examiner found the Veteran's symptoms interfered with his ability to obtain and sustain substantially meaningful employment. Analysis Having reviewed all the evidence of record, as noted above, the Board finds that for the entire period on appeal, the Veteran's symptoms most nearly approximated occupational and social impairment with deficiencies in most areas as contemplated by the criteria for a 70 percent rating, but not total occupational and social impairment as contemplated by the criteria for a 100 percent rating. As early as 2016, the Veteran's treatment records show deficiencies in judgment and concentration. The Board acknowledges that the January 2017 VA examiner found the Veteran's symptoms resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Board finds the contemporaneous treatment records documenting severe mood shifts, suicidal ideations, and obsessional rituals are more probative. However, total occupational and social impairment was not shown during the period on appeal. The evidence does not indicate that the Veteran demonstrated the symptoms listed in the rating schedule for a total rating, nor does the record demonstrate symptoms of such severity, frequency or duration that equate to total occupational and social impairment. Rather, the record shows that the Veteran was able to work full-time as a mail carrier during the entire period on appeal, and while his symptoms were significant, they did not cause total social impairment. Rather, the severity of his symptoms is contemplated in the assigned 70 percent rating as discussed above. Consideration has been given to assigning staged ratings. However, the Board finds that at no time during the period in question has the disability warranted a higher schedular rating than assigned. Fenderson, 12 Vet. App. at 119. In consideration of all the evidence of record, the Board finds that the preponderance of the evidence supports a 70 percent disability rating, but no higher, for the entire appeal period. REASONS FOR REMAND The Board finds that new VA examinations are necessary for the remaining issues on appeal as the previous VA examinations are not adequate. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate exam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to an initial compensable rating for tension headaches is remanded. The Board finds the December 2019 VA headache examination to be inadequate. The VA examiner's opinion as to the frequency and severity of the Veteran's headaches appears to be contradicted by statements in the Veteran's June 2017 VA Form 9 detailing incapacitating headaches more than four times per week. Additionally, the examiner did not take into account the Veteran's typical impairment throughout the entire period on appeal. Specifically, the examiner noted that the impact of the Veteran's headaches included missing work and inability to perform daily duties at work or home. Yet, within the same report, the examiner opined that the Veteran's headache condition did not impact his ability to work. As such, a remand is necessary to obtain a new VA examination. 2. Entitlement to service connection for sleep apnea is remanded. The Board also finds the December 2019 VA medical opinion as to the nature and etiology of the Veteran's sleep apnea to be inadequate. The examiner based his negative nexus opinion solely on the lack of documented treatment during and after service. The Veteran does not contend that he developed symptoms during service rather, he argues that he began to experience serious health issues after his return from the gulf war. See January 2017 Notice of Disagreement. 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 exposure to environmental hazards in the Southwest Asia theater of operations during the Persian Gulf War. Therefore, while the Board regrets the additional delay, a remand is necessary to obtain another opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea. 3. Entitlement to a TDIU is remanded. As the issue of entitlement to TDIU is intertwined with the increased rating and service connection claims, adjudication of that issue is deferred pending further development below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Board acknowledges the AOJ requested a VA Form 21-8940 from the Veteran in October 2019. However, to date, the Veteran has not returned the requested form. The Veteran is hereby notified that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, supra. The Board finds it cannot make a fully informed decision regarding the Veteran's claim of entitlement to a TDIU because the Veteran's current employment status is unclear. Specifically, the Veteran's mental health treatment records indicate the Veteran is working full-time for the United States Postal Service. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file that are relevant to the issues on appeal. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. 2. Ask the Veteran to complete and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected headaches. The examiner must address all information required for rating purposes and consider the Veteran's lay statements about the severity and frequency of his headaches. 4. 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. 5. 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. Each 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. Each examiner should provide a complete rationale for all opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. 6. The RO should ensure that the examinations and opinions are in compliance with the terms of this remand. 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims, including TDIU, must be readjudicated. 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.