Citation Nr: 21065127 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-36 482 DATE: October 25, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. For the period prior to June 8, 2020, an evaluation of 50 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to an evaluation higher than 50 percent for PTSD from June 8, 2020 is denied. FINDINGS OF FACT 1. The Veteran's OSA is aggravated by his service-connected PTSD. 2. For the entire period on appeal, PTSD is productive of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.310(a). 2. For the period prior to June 8, 2020, the criteria for an evaluation of 50 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 3. From June 8, 2020, the criteria for an evaluation higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Agency of Original Jurisdiction (AOJ). A November 2014 rating decision denied service connection for OSA. The Veteran timely appealed that decision and requested a Board hearing, which was held in May 2021. An October 2017 rating decision continued a 30 percent evaluation for PTSD. The Board remanded this issue in April 2020 for development of the record. In July 2020, the AOJ increased the evaluation of PTSD to 50 percent, effective June 8, 2020. Service connection for OSA The Veteran asserts that his OSA is aggravated by his service-connected PTSD. During his Board hearing, he testified that he could not use continuous positive airway pressure (CPAP) for his OSA because it caused him to panic. In July 2021, the Veteran's treating VA psychiatrist stated that due to increased anxiety, it had been more difficult for the Veteran to wear his CPAP mask. He noted the Veteran's report of feeling suffocated, resulting in panic attacks. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Having reviewed the record with respect to this issue, the Board concludes that service connection for the Veteran's OSA is warranted. In this regard, the Veteran has competently described anxiety and panic attacks related to use of his CPAP mask, resulting in noncompliance with its use and an increase in his OSA symptoms. A VA psychiatrist has indicated that increased anxiety caused difficulty with the Veteran's use of his CPAP mask. As there is medical evidence indicating a relationship between increased OSA symptoms and the Veteran's PTSD, as well as the Veteran's competent statements in support of his claim, the Board concludes that service connection for OSA is in order. Evaluation of PTSD The Veteran's PTSD is evaluated as 30 percent disabling prior to June 8, 2020 and as 50 percent disabling from that date. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged disability ratings are appropriate in any increased disability rating claim where distinct time periods with different ratable symptoms can be identified in the evidence. When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C. § 5110(b)(2); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, 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. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent evaluation is warranted for PTSD when there is 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, recent events). Id. A 50 percent evaluation is warranted for PTSD when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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 and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when there is 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 work like setting); inability to establish and maintain effective relationships. Id. In July 2017, a VA psychiatrist indicated that the Veteran's PTSD symptoms had increased over the previous two years. He noted recurrent, intrusive memories; recurrent nightmares several times per week; distress and arousal; avoidance; flattened affect; irritability; impaired judgment, insomnia; concentration and memory problems; hyperarousal; lack of motivation and energy, difficulty adapting to stress; and strong negative emotions. VA outpatient treatment records produced during the appeal period reflect that the Veteran attended both group therapy and individual sessions. During individual therapy he reported difficulty with motivation and mood. Objectively, he was consistently oriented, with fair to good insight and judgment. His appearance was appropriate, as were his speech and motor behavior. His thought pattern was linear and rational. His mood was consistently noted to be euthymic, with congruent affect. He consistently denied suicidal and homicidal ideation. On VA examination in August 2017, the examiner identified intrusion symptoms including distressing dreams, dissociative reactions, intense or prolonged psychological distress at exposure to cues of the traumatic event, and marked psychological reactions to cues symbolizing an aspect of the traumatic event; persistent avoidance of both internal and external stimuli; negative alterations in cognitions and mood including persistent and exaggerated negative beliefs or expectations, distorted cognitions, and feelings of detachment; and marked alterations in arousal and reactivity including hypervigilance, exaggerated startle response, and chronic sleep disturbance. He also noted depressed mood, anxiety, and suspiciousness. Behaviorally, the Veteran was pleasant and cooperative. His mood appeared depressed with appropriate affect. There was no abnormal behavior. The Veteran denied suicidal and homicidal ideation. The examiner concluded that the Veteran was competent. The Veteran reported consistent depression. He noted that he was actively involved in church and indicated that he had some close relationships with other Veterans, but that he also had difficulty with trust and had some emotional detachment. He indicated that he had experienced a panic attack approximately three years previously, but none since. He reported a history of anger issues since service, but noted that he had coped better with anger in recent years. Overall, the examiner indicated that the Veteran's symptoms were mild to moderate. However, he also acknowledged the Veteran's report of significant depressive symptoms. On VA examination in June 2020, the Veteran reported that he felt depressed most of the time and had for several years. He stated that he preferred to stay inside and to be left alone. He endorsed anxiety and hypervigilance in public or crowds. He indicated that he had frequent sleep disturbance as well as nightmares two to three times per week. He reported continued intrusive, distressing memories related to Vietnam. He described problems with anger, indicating that on occasion, he would lose his temper quickly. The examiner identified the same intrusion, avoidance, cognitive, mood, and arousal symptoms as the previous examiner, as well as the arousal symptom of problems with concentration. Behaviorally, the Veteran was pleasant and cooperative. His mood was dysphoric with appropriate affect. He related in a calm, sensible manner. His thoughts seemed logical and coherent, and he was talkative and sociable. Concentration seemed fair, and recall appeared adequate. There was no abnormal behavior, and the Veteran denied suicidal and homicidal ideation. The examiner concluded that overall, the Veteran's symptoms were moderate. The Veteran reported that he had close relationships with family and friends. He endorsed difficulty with motivation and interest, and the examiner noted that this appeared to be his most difficult symptom. While he reported occasional arguments with supervisors at work, he indicated that he was able to relate positively with coworkers and supervisors in most situations. The examiner indicated that the Veteran experienced moderate impairment regarding concentration and completion of tasks, as well as with tolerating stress. Having carefully reviewed the record, the Board concludes that for the entire appellate period, the Veteran's psychiatric symptoms more closely approximate the criteria for an evaluation of 50 percent. The evidence reveals that he has chronic sleep disturbance, constant depression, and problems with irritability. Providers have noted his consistent reports of disturbances of motivation and mood, and that he prefers to stay home and be left alone. VA examiners have described his symptoms as moderate. While the Board accepts that the Veteran's psychiatric disorder affects his social and occupational functioning, the objective evidence of record does not support a finding that an evaluation higher than 50 percent is for application. Here, while providers have identified intrusive memories and nightmares, arousal symptoms, avoidance, irritability, some impairment of judgment, sleep disturbance, concentration and memory problems, lack of motivation, and difficulty adapting to stress, the evidence does not demonstrate that these symptoms present with the level of severity contemplated by a 70 percent evaluation. There is no indication of suicidal ideation; rather, the Veteran has consistently denied both suicidal and homicidal ideation. There is no evidence of obsessional rituals or other abnormal behaviors. The Veteran has been fully oriented during individual and group therapy, as well as on formal examination. No disturbances of speech or thought have been observed. Rather, the Veteran has been found to have a linear and rational thought pattern and appropriate speech. In 2017, he reported that he had experienced a panic attack approximately three years previously, and had not had one since. His hygiene has repeatedly been found adequate. Insight and judgment have been noted to be fair to good. He reports close relationships with family and friends, and has indicated that he related well with supervisors and coworkers. Thus, it cannot be said that the evidence as a whole for the appellate period reflects occupational and social impairment of the severity contemplated by the criteria for a 70 percent evaluation. (Continued on the next page) In summary, the overall disability picture during the appellate period indicates that a 50 percent evaluation, but no higher, is appropriate throughout the appeal period. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.