Citation Nr: 21067784 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-08 243 DATE: November 5, 2021 ORDER Entitlement to a rating of 50 percent disability rating, but no higher, for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. The claim for entitlement to a compensable rating for right ear hearing loss is dismissed. REMANDED The claim for entitlement for entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The claim for entitlement to a rating higher than 10 percent for a back disability is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the Veteran's psychiatric disorder has been productive of symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. Prior to the promulgation of a final decision by the Board, the Veteran withdrew his appeal for entitlement to a compensable disability rating for right ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher of 50 percent, and no higher, for a PTSD have been satisfied. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for withdrawal of the claim of entitlement to a compensable disability rating for right ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to December 2007. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Increased Rating 1. Entitlement to a rating in excess of 30 percent for PTSD Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The Veteran contends that he is entitled to a rating higher than 30 percent for his service-connected PTSD. The Veteran's service-connected psychiatric disorder is rated under Diagnostic Codes Diagnostic Codes 9411, which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411. A 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. VA implemented DSM-5, effective August 4, 2014, and the VA Secretary determined that DSM-5 applies to claims certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's appeal was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. According to DSM-5, clinicians no longer typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons including its conceptual lack of clarity (i.e., including symptoms, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In statements and at hearing, the Veteran and his spouse reported that he had memory and concentration problems. They described irritability and anger outbursts. He was also easily startled. Throughout the appeal, treatment records show that the Veteran denied a history of psychosis, panic attacks, or suicidal or homicidal ideation. He endorsed avoidance of crowds, depression, impaired sleep, hypervigilance, memory problems, feelings detachment from others, sadness, poor energy, fatigue, irritability, impaired concentration, lack of motivation and self-isolation. He reported a stable home life and stated that he remained in contact with his 10 siblings and parents. Generally, the Veteran denied difficulties at work. No cognitive impairment was noted. An assessment of chronic PTSD and moderate depression was recorded. On VA examination in December 2013, the Veteran reported chronic sleep impairment, irritability, anxiety, and impaired concentration and memory. He denied suicidal or homicidal ideation. The Veteran described having a good relationship with his family and being close to his parents. He was socially and athletically active. He had been married for two years and resided with his spouse. The Veteran had a few friends and enjoyed composing gospel music. He completed high school. The Veteran was employed on homeland security and traveled a lot for his job. The examiner indicated that the Veteran was fully oriented. He was casually dressed with adequate grooming and hygiene. Psychomotor activity was unremarkable, speech was clear and coherent, and thought process/content was unremarkable. There were no signs of distorted thoughts or perceptions. Affect was appropriate. On VA examination in January 2019, the Veteran reported disturbances of motivation and mood, chronic sleep impairment, anxiety, depression, irritability, avoidance of stimuli, feelings of detachment from others and nightmares. The Veteran denied a history of inpatient or current outpatient mental health treatment. He took medication with little improvement. The Veteran was married and resided with his wife of eight years. He had one child who was two years of age. He reported good relationships with his immediate family members. He had one sibling and nine half-siblings with whom he had good relationships. The Veteran was employed as an armed security officer at Boeing where he had been employed since Jul 2018. He worked Belk as a loss prevention officer for 12 months, and for a digital corporation doing long range facial recognition hardware/software installations and upgrades. The Veteran stated that his work performance had not been affected by his mental health issues. He reported helping with household chores including, laundry and cooking, as well as caring for his daughter. Social activities included spending time with friends and family. The Veteran was described as a polite and cooperative man who was alert and oriented, and displayed no overt signs of psychosis. His behavior was appropriate. His grooming and hygiene were good, and eye contact was appropriate. The Veteran's mood was depressed and affect was appropriate. Speech was logical, goal directed, normal in rate and tone and there were no difficulties with articulation or prosody. Thought processes were within normal limits and reality testing was intact. Thought content was within normal limits, and there were no indications of auditory or visual hallucinations. The Veteran did not manifest any bizarre mentation or abnormal fears or obsessions. He denied homicidal and suicidal ideation. His insight and judgment were good. The examiner opined that the Veteran's psychiatric symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. On review of the evidence of record, the Board finds that the Veteran's psychiatric disorder most closely approximated the criteria for a 50 percent rating. Although the severity and frequency of symptoms varied throughout the appeal, the evidence shows that the Veteran reported symptoms of chronic sleep impairment, anxiety, irritability, depression, hypervigilance, nightmares, anger outbursts, exaggerated startle response, avoidance of stimuli, mood swings, impaired memory and concentration and self-isolation. Generally, he denied suicidal or homicidal ideation, plan or intent. There was no history of inpatient mental health treatment throughout the appeal and medication apparently managed his symptoms. The Board finds that the evidence of record does not support a disability rating higher than 50 percent at any point during the appeal period. The evidence does not show he has exhibited symptoms corresponding to a 70 percent rating during the appeal period, such as (for example only): 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. The Veteran's mental health treatment providers generally described the Veteran as appropriately groomed with good eye contact. His speech was normal. He was alert and oriented to person, place, time and situation. There was no evidence of psychomotor abnormalities. Behavior was appropriate. Insight and judgement were good. Some memory and concentration impairment was noted during the appeal, but no more than moderate in severity. There was no evidence of psychosis. Most treatment providers and examiners characterized the Veteran's symptoms as mild to moderate. Generally, the Veteran described his occupational and social impairment as no more than mild to moderate. The VA examiner in January 2019 opined that the Veteran's psychiatric symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. This does not suggest, in any way, that the Veteran does not have problems. A 50 percent disability evaluation will cause the Veteran many problems, as he has noted. The only question is the degree, based on the criteria cited above, nothing more. Simply stated, there is evidence in this record that does not support the 50% finding, however, there is enough to suggest a 50% rating is warranted. In sum, the Board finds that the criteria for a 70 percent rating have not been demonstrated. The evidence does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Nor is there symptomatology of similar severity, frequency and duration consistent with the criteria for a 70 percent rating. Therefore, the Board finds that the evidence does not more nearly approximate the criteria for a rating of 70 percent and a rating greater than 50 percent is denied. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and finds that the criteria for a 50 percent rating, and no higher, for a psychiatric disorder are met. A rating in excess of 50 percent is not warranted at any point during the appeal period. See 38 C.F.R. § 4.130; Fenderson, supra; Hart, supra. Withdrawal 2. Entitlement to a compensable rating for right ear hearing loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her or her authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. With regard to the appeal of entitlement to a compensable rating for right ear hearing loss, the issue was withdrawn on record by the Veteran at his Board hearing in July 2021. The Veteran's oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). There remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, as to the claim for entitlement to a compensable rating for right ear hearing loss, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. The claim for entitlement for entitlement to service connection for OSA is remanded. The Veteran contends that his OSA initially manifested in service. In the alternative, he argues that his service-connected PTSD caused or aggravated his OSA. In 2013, the Veteran reported a history of snoring for many years. A polysomnogram in August 2013 revealed OSA. A VA examiner in February 2019, following a review of the claims file, opined that the Veteran's OSA was less likely than not proximately due to or the result of PTSD. The examiner explained that the etiology of OSA was multifactorial and despite the recognized association between sleep disordered breathing, including sleep apnea, and PTSD in the peer-reviewed literature, there was yet to be a preponderance of the evidence-based literature supporting a finding that OSA was at least as likely as not secondary to PTSD. The VA examiner failed to address whether the Veteran's OSA was aggravated by PTSD, no did the examiner address the Veteran's contention that OSA had onset in service. Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, additional development to obtain adequate medical nexus opinions is necessary. 2. The claim for entitlement to a rating higher than 10 percent for a back disability is remanded. The Veteran was most recently afforded a VA examination in connection with his back disability in December 2018. At that time, the examiner noted flexion limited to 90 degrees, extension to 20 degrees, right and left lateral flexion and rotation was to 30 degrees, respectively. There was no objective evidence of pain or additional loss of motion with repetitive movement, or any evidence of radiculopathy or radicular symptoms. While the Veteran reported additional loss of motion with repeated use over time, the examiner did not quantify the limitation in degrees. At the July 2021 Board hearing the Veteran essentially testified that his back disability had worsened and reported increasingly reduced range of motion. He described increased sharp back pain on standing or walking. He also described pain that radiated from his lower back to his hips, bilaterally. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In light of the Veteran's testimony that his disability has increased in severity, a new examination to evaluate the severity of the Veteran's back disability is warranted. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the disabilities on appeal, and complete and return an appropriate authorization form for each treatment provider identified, including records from the Alabama Sleep Clinic. After obtaining the completed release forms, request all identified pertinent medical records. If possible, the Veteran should get these records and submit them himself to expedite the case. 2. Schedule the Veteran for a VA examination to determine whether his OSA is related to service or the service-connected PTSD. The claims folder must be made available to the examiner for review before the examination. All indicated tests should be done and all findings must be reported in detail. Following review of the claims file, the examiner must address the following: a) Determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea had onset during service from or is otherwise related to any aspect of the Veteran's service. Please explain why or why not. b) If not, determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea is caused or aggravated by a service-connected disability, to include PTSD. Please explain why or why not. 3. Schedule the Veteran for a VA examination to assess the current severity of his service-connected back disability. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. a) All indicated tests and studies must be conducted, specifically, the Veteran's range of motion on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any incapacitating episodes and/or flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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 the medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). b) The examiner should provide findings responsive to the criteria for rating intervertebral disc syndrome (IVDS) and specifically, comment on the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician), if there are any, in the last 12-onth period. c) Describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected lumbar disc disease. d) To the extent possible, the examiner should identify any symptoms and functional impairments due to her back disability alone and discuss the effect of such on any occupational functioning and activities of daily living. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.