Citation Nr: 21072362 Decision Date: 12/03/21 Archive Date: 12/02/21 DOCKET NO. 18-00 466 DATE: December 3, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for service-connected posttraumatic stress disorder (PTSD) prior to November 18, 2017 is granted. The petition to reopen the claim of service connection for sinusitis is granted. REMANDED Entitlement to service connection for sinusitis and rhinitis is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. Prior to November 18, 2017, the Veteran's PTSD was manifested by passive suicidal ideation, difficulty in adapting to stressful circumstances (including work or a worklike setting), impaired impulse control (such as unprovoked irritability with periods of violence), flattened affect, impairment of short-and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining work and social relationships, and chronic sleep impairment. 2. At no point during the appeal period has the Veteran's PTSD been manifested by 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. 3. The RO denied the Veteran's petition to reopen the claim of service connection for sinusitis in a September 2012 rating decision. He did not timely file a notice of disagreement, and new and material evidence was not received within one year of the decision; therefore, the decision became final. 4. Since the September 2012 rating decision, the Veteran has submitted new and material evidence reflecting diagnoses of sinusitis and rhinitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating, but no higher, for the service-connected PTSD prior to November 18, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The September 2012 rating decision denying the petition to reopen the claim of service connection for sinusitis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. The criteria for reopening the claim of service connection for sinusitis have been met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1998 to July 1999 and from June 2004 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2016 and September 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a 70 percent rating for service-connected PTSD prior to November 18, 2017 is granted. Per the February 2016 Supplemental Claim filing, the Veteran sought a rating higher than 30 percent for his service-connected PTSD. After an increase was denied in a May 2016 rating decision and the Veteran filed a notice of disagreement, a November 2017 rating decision granted an increase to 50 percent prior to November 2017 and a 70 percent rating effective November 18, 2017. Following the Statement of the Case, the Veteran's representative submitted a VA Form 9 indicating the only issue appealed as the 50 percent rating in effect prior to November 18, 2017. That was also the only issue identified as on appeal at the Board hearing. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. 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; memory loss for names of close relatives, own occupation, or own name cause total occupational and social impairment. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. After review of the lay and medical evidence, the Board finds that a rating of 70 percent for service-connected PTSD is warranted prior to November 18, 2017 based on occupational and social impairment with deficiencies in most areas. The Veteran was afforded VA PTSD examinations in April 2016 and November 2017. At the April 2016 examination, the Veteran had been married for 10 years with one child and described his relationship with his wife as lacking physical and emotional closeness. He described his relationship with his three-year-old son as good, but noted that he doesn't have the energy or drive to play with him. Regarding occupational history, the Veteran reported working full-time for a government agency since 2002 and indicated that he lacks motivation at work and calls off frequently. He reported that his supervisor expressed concern about his absences and energy, but he has not faced any disciplinary actions. He also reported pursuing his master's degree in criminal justice and having problems in school due to lack of motivation, noting that he had been expelled from a different master's program in 2014 due to poor grades. The Veteran's wife provided a statement as to the Veteran's PTSD symptoms, which the Veteran brought to the examination. The examiner documented his wife's reports that his mood, restricted emotions, and lack of motivation significantly impact family functioning, and his symptoms impact his motivation to work, with the Veteran inconsistently attending work for many months. The Veteran reported multiple symptoms related to his PTSD, including: loss of interest and motivation, forgetfulness, emotional numbness, irritability, physical aggression (such as punching holes in walls), sleep impairment, and a history of passive suicidal ideation. The examiner separately documented that the Veteran experienced depressed mood, chronic sleep impairment, flattened affect, and disturbances of motivation and mood as symptoms of his PTSD. The examiner determined that the severity and duration of the Veteran's symptoms resulted in 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. Regarding behavioral observations, the examiner noted that the Veteran was casually dressed with good grooming and hygiene, presented with euthymic mood that became ornery and tearful at different parts of the examination, and exhibited appropriate behavior, normal speech, normal thought processes, and fair insight and judgment. The examiner further noted that he denied hallucinations and active suicidal or homicidal ideation, but also noted that the Veteran had a history of occasional thoughts of self-harm. At the November 2017 examination, the Veteran had been married 12 years and reported several issues with his behavior at home. He specifically reported that he shouts and has put holes in walls, noting that his wife has started therapy to deal with his behavior. He stated that his wife has made comments about leaving him and cannot remember the last time he smiled or laughed. Regarding occupational history, he reported continuing to work for the same agency and traveling to "questionable places" for work that make him feel better as they remind him of being in the service again. He reported that when he's not traveling for work, he uses a lot of leave because he does not care. He indicated that he has applied twice for another job, but cannot pass the entrance examination. As for education, he reported that he has either been expelled or dropped out of college three times since service due to lack of motivation to complete work. The Veteran reported multiple symptoms related to his PTSD, including: decreased energy, lack of physical and mental motivation, sleep impairment, constant reminders of traumatic events, avoidance of traumatic events, and passive suicidal ideation. The examiner separately documented that the Veteran experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting as symptoms of his PTSD. The examiner determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Regarding behavioral observations, the examiner noted that the Veteran was appropriately dressed and groomed, presented with anxious and irritable mood and affect, and exhibited rapid, pressured speech and normal thought processes. The examiner further noted that he did not exhibit delusions, hallucinations, or obsessions. The November 2017 examiner separately discussed the April 2016 VA examination in the remarks section of the examination report. He noted that the previous examiner listed symptoms associated with the 50 percent rating criteria but then summarized the Veteran's symptoms with language used in the 10 percent rating criteria, which he stated did not seem consistent with the rest of her examination report. He stated that at his examination, the November 2017 examination, the Veteran's symptoms suggested severity greater than suggested by the previous examination, specifically noting that the Veteran's failing out of school twice, failing examinations for other branches of the federal government, and use of regular and excessive absences from work which have been commented on by superiors indicate difficulty in adapting to stressful circumstances, including work or a worklike setting. At the August 2021 Board hearing, the Veteran's representative argued that the November 2017 examination focused on historical symptoms, indicating that the Veteran's PTSD didn't suddenly take a significant downturn in line with the date of the November 18, 2017 increase from 50 percent to 70 percent. Based on review of the November 2017 examination report and the November 2017 examiner's remarks as to the April 2016 examination, the Board finds this argument persuasive. The Veteran reported many of the same symptoms at both examinations, including employment-based and education-related difficulties, with his reports at the November 2017 examination encompassing specific instances of impairment from prior to the April 2016 examination. Separately, the November 2017 examiner's comments as to the April 2016 examination indicate that he sought to clarify or remedy the inconsistencies of the April 2016 examination, which is particularly evident in his reference to the Veteran's failing out of school twice, failing examinations for other branches of federal government, and regular and excessive absences from work, most of which was reported at the April 2016 examination, as evidence of difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran attended a private mental status examination in September 2016, which is associated with the claims file. At the examination, the Veteran reported that his marriage is "up, down, now great," but referenced putting holes in the walls due to anger. He also reported having issues with his job, including using a lot of sick time and experiencing problems functioning, lack of motivation, and forgetfulness. The examiner, Dr. J.A., documented that the Veteran experienced a variety of symptoms related to his PTSD, such as: moderate intrusive reminders of traumatic events, mild physical reactions to such reminder, mild avoidance behavior, moderate memory issues, severe loss of interest in activities, moderate feelings of detachment, moderate inability to experience positive emotions, severe verbal aggression and irritability, severe hypervigilance, moderate exaggerated startle response, moderate concentration issues, and severe sleep disturbances. Dr. J.A. determined that these symptoms result in moderate, definite social impairment with some aspects of social functioning intact, and moderate, definite occupational impairment with most aspects of occupational functioning intact. The examiner concluded by determining that the Veteran's PTSD impairment is more consistent with reduced reliability and productivity, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, irritability, and depression. Regarding behavioral observations, Dr. J.A. noted that the Veteran's attitude was passive/aggressive, concentration was fair, attention was average, speech was clipped and rapped, affect was normal, insight and judgment were average, and thought processes were normal. Dr. J.A. documented that the Veteran denied suicidal ideation, paranoid ideas, hallucinations, and obsessions, but reported mild compulsive behavior. The Veteran's treatment records also document his reports of PTSD symptoms and impairments. While the Veteran received limited treatment from VA for his PTSD, at June 2016 and July 2016 VA mental health visits, he reported symptoms of hypervigilance, anxiety, depressed mood, anger, irritability, poor sleep, and tiredness. At the June 2016 visit, his provider observed that he presented as alert and oriented to time, place, and situation, was casually dressed, and exhibited normal speech, intact insight and judgment, no audio or visual hallucinations, and no suicidal or homicidal ideation. The Veteran has reported that he receives most of his treatment from his private provider, Dr. C.A. Across multiple visits with Dr. C.A., the Veteran reported multiple symptoms, including: irritability, anger, loss of interest, feeling down, trouble sleeping, lack of energy, poor appetite or overeating, trouble concentrating, and unusually slow or restless movement. See, generally, January 2016, February 2016, and August 2017 Treatment Records. At these visits, Dr. C.A. observed the Veteran's overall behavior, noting that he presented as alert and oriented to time, place, person, and situation, and exhibited appropriate mood and affect, appropriate behavior, normal insight and judgment, and no forgetfulness or compulsive behavior. The Board has considered the Veteran's lay statements, specifically including his August 2021 Board hearing testimony. At the August 2021 hearing, he testified that that he experienced anger issues, aggression (such as putting holes in the wall), and social isolation during the appeal period. He also testified that around 2016 or 2017, he missed a lot of work and was "hounded" by supervisors about his leave, had failed tests for another job twice, and had failed classes related to his master's degree. His wife testified that she watched him lose motivation, struggle in school, struggle going out in public, become angry "where it's just the flip of a switch," and socially isolate. After review of the lay statements, treatment records, and VA and private examinations, the Board finds that the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas prior to November 18, 2017. In making this finding, the Board found both the August 2021 Board hearing testimony, the September 2016 private examination, and the November 2017 examination particularly probative. This evidence, taken together, indicates that the Veteran's symptoms significantly impact his employment and education, with the Veteran taking excessive leave from work to the point his supervisors have commented on it and both failing out and dropping out of two master's degree programs due to lack of motivation. This evidence further shows that the Veteran's PTSD symptoms significantly impact his family relations, with both the Veteran and his wife reporting both aggression and violent behavior at home, to include punching holes in the wall. Separately, in making this finding, the Board found the April 2016 examination to be of little probative value. As noted by the November 2017 examiner, the examination contained inconsistent determinations as to severity, with the April 2016 examiner documenting symptoms contemplated by a 50 percent rating but ultimately determining that the Veteran's PTSD only manifested as impairment contemplated by a 10 percent rating. As a whole, the most probative evidence demonstrates that the Veteran's PTSD symptoms, which include passive suicidal ideation, difficulty in adapting to stressful circumstances (including work or a worklike setting), impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), flattened affect, impairment of short-and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining work and social relationships, and chronic sleep impairment warranted a 70 percent rating prior to November 18, 2017. The Board finds the Veteran's PTSD does not warrant a 100 percent rating at any point during the appeal period. The Veteran's PTSD has not manifested as any of the symptoms, or any level of impairment contemplated by a 100 percent rating throughout the appeal period. His treatment records and VA examinations consistently reflect normal thought processes and communication, he has consistently denied any active suicidal ideation and delusions and/or hallucinations, and he has neither exhibited nor reported grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation to time or place, and/or memory loss for names of close relatives, his own occupation, or his own name. 2. The petition to reopen the claim of service connection for sinusitis is granted. The Veteran seeks to reopen his claim of service connection for sinusitis. He filed his original claim of service connection in November 2010, which was denied by the RO in September 2012 for lack of a current disability. He did not file a notice of disagreement, and no new and material evidence was received within one year of the September 2012 rating decision. The Board notes that the Veteran was afforded a VA Gulf War examination in January 2013, within one year of the September 2012 rating decision, in which the examiner marked that the Veteran claimed, and an examination was requested for, sinusitis. The examiner did not discuss the Veteran's claim and there is no reference to sinusitis in the examination report beyond this. Accordingly, this evidence was not material, and the September 2012 rating decision became final. 38 C.F.R. § § 20.1103 VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should be cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. The Veteran filed a petition to reopen his sinusitis claim in February 2016. After reviewing evidence associated with the claims file since the September 2012 rating decision, the Boards finds that new and material evidence related to the sinusitis claim has been received. Specifically, the Veteran submitted private treatment documenting diagnoses of chronic sinusitis, acute frontal sinusitis, and allergic rhinitis. See, generally, January 2016, February 2017, and August 2017 Treatment Records. Because these records were not associated with the claims file at the time of the September 2012 rating decision, and they related to an unestablished fact necessary to substantiate the sinusitis claim (i.e., current disability), they are both new and material. As such, the petition to reopen is granted. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. New and material evidence having been received, the Veteran seeks service connection for sinusitis, which he contends is due to Gulf War exposures. Because the evidence reflects diagnoses for multiple sinus-related disabilities, as discussed below, the Board has expanded this claim to include sinusitis and rhinitis. VA recently issued an interim final rule to establish presumptive service connection for three chronic respiratory health conditions, including asthma, rhinitis, and sinusitis (to include rhinosinusitis) related to presumed exposures to fine particulate matter. 86 Fed. Reg. 42,724 (August 5, 2021); 38 C.F.R. § 3.320. Under this new rule, presumptive service connection applies to veterans with a qualifying period of service of active duty in the Southwest Asia theater of operations during the Persian Gulf War. Id. The interim final rule applies to all qualifying claims applications that are received by VA on or after August 5, 2021, or that were pending before VA, on August 5, 2021. Id. The Veteran served in Iraq from August 2004 to March 2005; therefore, he has qualifying service in Southwest Asia during the Persian Gulf War and is presumed to have been exposed to fine particulate matter during this service. He has also been diagnosed with acute frontal sinusitis, allergic rhinitis, and chronic sinusitis since service. See, generally, Family Healthcare Associates Treatment Records. However, 38 C.F.R. § 3.320 requires that rhinitis or sinusitis become manifest within 10 years from separation, and each of these diagnoses were made over 10 years after his separation. There is currently no medical evidence associated with the claims file reflecting a diagnosis of, or treatment for, sinusitis or rhinitis within 10 years of the Veteran's separation from service. The Veteran's private treatment records, though, include a January 2016 diagnosis of chronic sinusitis, which is around 10.5 years after the Veteran's last date of active service. Because this sinusitis diagnosis is noted as chronic, indicating possible treatment for sinusitis within the 10-year period following separation, the Board finds that remand is necessary to try and obtain prior records documenting treatment for sinusitis from April 2015 or earlier and to obtain a new VA examination addressing the onset of this condition. The Board notes that the Veteran was afforded a VA examination in July 2012 to assess the nature and etiology of any nose, throat, larynx, and pharynx conditions, and while the examiner determined that the Veteran did not have, nor had ever been diagnosed with, a sinus, nose, throat, larynx, or pharynx condition, he separately noted that the Veteran has rhinitis, and documented the Veteran's reported history of sinus pressure and nasal congestion while deployed to Iraq. The examiner separately noted that the Veteran provided a history of rhinitis and seasonal allergy issues, but the nasal examination was normal, and he saw no evidence of chronic sinusitis. On remand, the examiner should determine whether the Veteran had a rhinitis disability that became manifest within 10 years from his separation from service. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran seeks service connection for obstructive sleep apnea. He contends that his sleep apnea may be related to his presumed Gulf War exposures, service-connected PTSD, and/or claimed sinusitis. The Veteran's private treatment records document a diagnosis of obstructive sleep apnea in May 2017. He has not yet been afforded a VA examination assessing the nature and etiology of his diagnosed sleep apnea, and there are no medical etiology opinions that address any possible relationship of his sleep apnea and service, to include as related to Gulf War exposures and/or service-connected disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As such, this matter must be remanded to afford the Veteran a VA examination addressing these contentions and the nature and etiology of his sleep apnea. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a release authorizing VA to request any private treatment records documenting treatment for rhinitis or sinusitis within 10 years of separation from service. 2. DO NOT SCHEDULE THE FOLLOWING until the above records have been obtained, to the extent possible. 3. Schedule the Veteran for a VA examination to assess the date of onset of his sinusitis and rhinitis. After a review of the claims file, including any newly associated private treatment records, the examiner should respond to the following: 4. Did the Veteran's rhinitis and/or sinusitis manifest to any degree within 10 years of his separation from service (April 2005)? 5. If not, is it at least as likely as not that the Veteran's rhinitis and/or sinusitis is related to service, to include as due to his presumed Gulf War exposures? The examiner must explicitly consider the Veteran's lay statements that he had sinus troubles during service and since his separation from service. All opinions must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. 6. Schedule the Veteran for a VA examination to assess the nature and etiology of his obstructive sleep apnea. After a review of the claims file, including any newly associated private treatment records, the examiner should respond to the following: 7. Is it at least as likely as not that the Veteran's (50 percent or greater probability) that the Veteran's obstructive sleep apnea is related to service, to include as due to presumed Gulf War exposures? 8. If not, is it at least as likely as not that the Veteran's obstructive sleep apnea is caused or aggravated by the Veteran's service-connected PTSD and/or claimed rhinitis and sinusitis? The examiner must opine as to both causation and aggravation. All opinions must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.