Citation Nr: 21070375 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-03 679 DATE: November 23, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to PTSD, is remanded. Entitlement to service connection for a traumatic brain injury (TBI) or the residuals thereof is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD symptoms have not resulted in total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from March 1966 to January 1968. These matters come before the Board of Veterans' Appeals (Board) from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office in June 2011, December 2011, April 2014, and February 2015. The Board previously considered each of these issues on appeal aside from service connection for a TBI in an October 2018 decision. The Board granted entitlement to a total disability rating based on individual unemployability (TDIU) and an increase to 70 percent for the Veteran's PTSD for the entire appeal period. It remanded the issue of entitlement to an even higher rating for PTSD as well as the service connection issues for sleep apnea and erectile dysfunction. After the effectuation of the Board's grant of a higher rating and a TDIU in October 2018, the Veteran reported in a telephonic conversation with a VA employee that he wished to withdraw his appeals. VA notified him he would need to submit this withdrawal in writing and sent him correspondence in August 2021 asking him to confirm in writing whether he wished to proceed with a withdrawal of his appeals. No response was received, and the issues therefore remain on appeal. The issue of recognition of D.S. as the Veteran's child, for the purpose of additional dependency compensation based on the permanent incapacity for self-support prior to attaining age 18, will be the subject of a separate Board decision. Entitlement to a disability rating in excess of 70 percent for PTSD As the Board explained its October 2018 decision, while a 70 percent disability rating was granted in that decision, the question of whether an even higher disability rating was warranted remained on appeal. See e.g. AB v. Brown, 6 Vet. App. 35 (1993). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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). On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran's PTSD is evaluated under Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. 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, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). As the Board explained in its October 2018 decision, VA's Regional Office has certified this appeal to the Board after the August 4, 2014, effective date of an amendment of VA's regulations that removed references to the DSM-IV and replaced them with the updated Fifth Edition of that Manual. This new edition no longer considers Global Assessment of Functioning (GAF) scores, and they are not relevant for the Board's current analysis. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018). Since the time of the Board's grant of a TDIU and increase in the Veteran's disability rating for his PTSD to 70 percent, neither he nor his representative have presented any substantial argument with respect to the question of whether the criteria for a 100 percent disability rating have been met either now or at any point on appeal. It is also notable that prior to the Board's decision in October 2018, the Veteran's representative submitted an April 2015 brief arguing that the PTSD symptomatology most closely resembled the criteria for a 70 percent disability rating. The Board agreed, and for the extensive reasons explained in the October 2018 decision, it detailed how the symptoms relating to the evidence of record at that time indicated the PTSD symptoms most closely approximated occupational and social impairment with deficiencies in most areas. This level of impairment was consistent with isolated reports of a history of suicidal ideation from private treatment notes from March 1982 and 1983 and from VA treatment records in September 2009 and 2010. It was also consistent with the reports of impaired impulse control and unprovoked periods of irritability and violence, as shown in January 1982 treatment records demonstrating workplace difficulties with a short temper and March 1982 records documenting an instance of striking his wife with an open hand. March 2009 VA treatment records continued to include reports of the Veteran's feelings of anger and irritability as well as his need to isolate himself during periods of aggravation. Treatment notes from November of that year again evidence an episode of punching holes in walls and raising his voice. By December 2012, additional VA treatment notes documented physical striking of the Veteran's wife or the loss of his temper with minimal provocation. The VA treatment records from 2011 also included reports of increased worries of memory problems. A clinical note from February of 2012 documented a two-year increase in intermittent transient memory loss. Other symptoms in the Veteran's treatment records included sleep disturbance, inability to maintain friendships or social relationships outside of his family, anxious affects, intense thought processes, and difficulty maintaining lines of thoughts with distractibility, as noted in the July 2011 VA medical examination. As these ongoing psychological symptoms demonstrated somewhat serious occupational and social impairment, the Board found that the closest matching criteria were those set forth in the rating criteria for a 70 percent disability rating. The Veteran did not challenge this rating, and the representative has also been silent in explaining why an even higher rating is warranted. The Board also emphasizes that despite these serious symptoms, they do not include the type or frequency of illustrative symptoms set forth in the rating criteria for a 100 percent rating. For instance, despite the reports of significant memory deficits, the clinical reports of his memory symptoms do not suggest that they were so severe that he was unable to remember the names of close relatives, his own occupation, or his own name. They also contain only brief and isolated reports of violence to his spouse, which is more similar to the criteria for a 70 percent rating that is appropriate for impaired impulse control wit unprovoked irritability and periods of violence. The 100 percent criteria include illustrative examples of more severe evidence of violent symptomatology, such as persistent danger of hurting oneself or others. The records do not demonstrate that the Veteran posed such a persistent threat of harm. The evidence added since the time of the October 2018 also fails to include the degree of impairment described in the 100 percent criteria. Moreover, despite the reports of significant social impairment such as an inability to maintain any friendships, the VA treatment records, records received from the Social Security Administration (SSA), and lay statements show that the Veteran was able to act as a primary caregiver both for his wife, who has been determined to be in need of aid and assistance of another, and his daughter, who SSA has determined is disabled in accordance with that agency's rules and regulations. Records from as early as January 2010 indicate he began acting as his spouse's primary caretaker and also indicate he was at that time acting as a writer and applying for jobs via the internet. At the time of the July 2011 VA medical examination, the Veteran also reported highly positive relationship with his grandkids and again stated that he was his wife's caretaker. In a September 2013 letter to SSA, the Veteran confirmed that he continued to be a full-time caregiver to his adult daughter. These reports document a rather substantial level of social functioning that is at odds with the criteria for a 100 percent disability rating for PTSD, which requires total social and occupational impairment. Taken with the opinion evidence from the VA psychiatric examiners, each of whom has failed to find that the Veteran's psychiatric symptoms have resulted in such total occupational and social impairment, the Board finds that the preponderance of the evidence does not support a finding that the criteria for a 100 percent disability rating have been met. In making this determination, the Board recognizes that the most recent VA psychiatric examination was conducted in November 2013. However, there is no substantial evidence anywhere in the record that the Veteran's PTSD has worsened since that time. Neither the Veteran nor his representative have suggested such a worsening has occurred and the clinical reports since that time appear largely stable. The Board therefore does not find that a remand is required to provide an additional examination. Ultimately, the records demonstrate rather substantial psychiatric symptoms have affected the Veteran's functioning in a variety of areas. However, they do not contain the degree of symptomatology, such as severe loss of memory or persistent violence, that shows that the Veteran has experienced total social and occupational impairment. On the contrary, despite his symptoms, he has been able to engage in full-time caretaking duties of two disabled relatives. As such, the appeal is denied and the doctrine of the benefit of the doubt is not for application. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea and erectile dysfunction, to include as secondary to PTSD, is remanded. As noted in the introduction of this decision, the Board previously remanded these issues in October 2018. At that time, it explained that regarding the claim for erectile dysfunction, the November 2013 VA medical examiner did not provide an explanation as to why it was not the PTSD rather than another pathophysiological factor that had caused his erectile dysfunction and that the examiner also failed to provide the significant genitourinary symptoms that appear in the Veteran's service treatment records to evaluate whether a direct theory of service connection was warranted. With respect to the claim for obstructive sleep apnea, the Board also determined that the November 2013 VA medical examiner did not provide an adequate opinion regarding whether PTSD aggravated the Veteran's obstructive sleep apnea and failed to consider the relevance, if any, of July 2011 medical articles submitted by the Veteran relating to a link between PTSD and sleep apnea. Due to these deficiencies, the Board determined that an additional medical opinion was necessary. VA attempted to schedule a medical examination with the Veteran in early 2021. However, in February 2021, the Veteran explained in a telephonic conversation that he no longer needed to continue his claim in light of the grant of a TDIU and therefore had no need to attend an examination. Unfortunately, as described above, VA informed the Veteran of a need for a withdrawal to be in writing and no such withdrawal was forthcoming. As such, it now appears that the Veteran no longer wishes to withdraw his claim. To fully assist the Veteran in the development of his claim that he no longer appears to wish to withdraw, an additional remand is required to allow VA to obtain the medical opinions requested in the October 2018 remand. 2. Entitlement to service connection for a TBI is remanded. Although arising from a separate rating decision and substantive appeal to the Board, this issue has now also been properly certified to the Board. In the substantive appeal, the Veteran's representative argued that the Veteran experienced a variety of symptoms that are thought to be related to an in-service head injury he sustained at the hands of fellow service members. The representative highlighted that the Mayo Clinic has clarified that there may be a delay in the onset in the symptoms of a TBI that may include sensory problems, blurred vision, ringing in the ears, and feelings of depression or anxiety for which the Veteran has already sought service connection. As there is a documented report of a forehead laceration in the Veteran's service treatment records from February 1967, the representative argues that at minimum a medical examination is warranted to separate out whether any of the Veteran's current symptoms, to include his extensive treatment for headaches, are related to a TBI that was caused by that in-service incident. The Board finds that there is sufficient evidence to determine that VA's duty to assist the Veteran in the development of his claim has been triggered such that a VA medical examination is warranted to determine the nature of any current TBI-related disability or the residuals thereof and whether any such disability is etiologically related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Additionally, it appears from the record that there are outstanding potentially relevant private treatment records relating to this disability that are not included in the claims file. A January 2014 VA treatment note indicates the Veteran recently underwent a CT or MRI scan of his brain at Northside Cherokee Hospital and VA clinical records from March 2014 indicate the Veteran had been followed for headache symptoms at Dekalb Neurology Group. Upon remand, VA should make reasonable efforts to obtain and consider these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Northside Cherokee Hospital, Dekalb Neurology Group, and any other treatment provider that has treated neurological or potentially TBI-related symptoms. Make two requests for the authorized records from any facility identified unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum medical opinion from an appropriate medical professional as to the etiology of the Veteran's sleep apnea. The claims file must be available to and reviewed by the examiner. If, in the opinion of the examiner, a physical examination is necessary for a fully informed opinion, arrange for the Veteran to attend such an examination. After review of the claims file, the examiner should provide an opinion on the following questions: (a) Is it at least as likely as not that the Veteran's sleep apnea was caused by the Veteran's service-connected disabilities or the treatment he receives for them, to include PTSD? In providing this opinion, the examiner is asked to specifically consider the medical articles submitted by the Veteran in July 2011 regarding a connection between PTSD and sleep apnea. (b) Is it at least as likely as not that the Veteran's sleep apnea was caused aggravated by (worsened in severity beyond the natural progression of the disease) the Veteran's service-connected disabilities or the treatment he receives for them, to include PTSD? In providing this opinion, the examiner is asked to specifically consider the medical articles submitted by the Veteran in July 2011 regarding a connection between PTSD and sleep apnea. 3. Obtain an addendum medical opinion from an appropriate medical professional as to the etiology of the Veteran's erectile dysfunction. The claims file must be made available to and reviewed by the examiner. If, in the opinion of the examiner, a physical examination is necessary for a fully informed opinion, arrange for the Veteran to attend such an examination. After review of the claims file, the examiner should provide an opinion on the following questions: (Continued on the next page) (a) Is it at least as likely as not that the Veteran's current erectile dysfunction is related to the numerous genitourinary symptoms and conditions he was treated for in service? Treatment in service appears to include episodes of care from September 1966, April 1967, May 1957, June 1967, September 1967, and October 1967. The examiner's attention is also called to the July 2011 medical articles submitted by the Veteran regarding a link between PTSD and erectile dysfunction. (b) Is it at least as likely as not that the Veteran's erectile dysfunction has been aggravated by (worsened in severity beyond the natural progression of the disease) his service-connected PTSD, to include any medication prescribed for the treatment of this disability? M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.