Citation Nr: 21075482 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-60 706 DATE: December 20, 2021 ORDER Entitlement to a 70 percent rating for other specified trauma and stress related disorder, with major depressive disorder, prior to August 4, 2020, is granted. Entitlement to a rating in excess of 70 percent for other specified trauma and stress related disorder, with major depressive disorder, from August 4, 2020, is denied. Entitlement to a rating in excess of 50 percent for obstructive sleep apnea is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's other specified trauma and stress related disorder, with major depressive disorder, has been productive of occupational and social impairment with deficiencies in work, family relationships, thinking and mood due to such symptoms as severe depression, social isolation, anxiety, and disturbances in motivation. 2. The Veteran's sleep apnea requires the use of a CPAP machine when sleeping, but there is no evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for other specified trauma and stress related disorder, with major depressive disorder, prior to August 4, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9410. 2. The criteria for a rating in excess of 70 percent for other specified trauma and stress related disorder, with major depressive disorder, from August 4, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9410. 2. The criteria for a rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to November 1997, from July 2004 to February 2009, and from June 2009 to April 2010, including two tours in Iraq. This matter initially came before the Board of Veterans' Appeals (Board) on appeal form a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office, which in pertinent part, denied entitlement to a rating in excess of 50 percent for other specified trauma and stress related disorder, with major depressive disorder, denied entitlement to a rating in excess of 50 percent for obstructive sleep apnea, and denied entitlement to a TDIU. In July 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. A Supplemental Statement of the Case (SSOC) was issued in October 2020. The case has since returned to the Board for the purpose of appellate disposition. In March 2020, the Veteran testified in a hearing before a Veterans Law Judge who is no longer with the Board. The Veteran was provided an opportunity for another hearing before a Veterans Law Judge who would decide his appeal; however, he declined an additional hearing in an April 2021 correspondence. During the course of the Veteran's appeal, in a September 2020 rating decision, the AOJ awarded a 70 percent rating for other specified trauma and stress related disorder, with major depressive disorder, effective August 4, 2020. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Accordingly, the Board has characterized the appeal as noted on the title page. INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 1. Entitlement to a rating in excess of 50 percent for other specified trauma and stress related disorder, with major depressive disorder, prior to August 4, 2020. 2. Entitlement to a rating in excess of 70 percent for other specified trauma and stress related disorder, with major depressive disorder, from August 4, 2020. The Veteran's other specified trauma and stress related disorder with major depressive disorder is rated as 50 and 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9410. Other specified anxiety disorder is rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. Under the General Rating Formula, a 50 percent rating is assigned for 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 and maintaining effective work and social relationships A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. 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; 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 closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." A February 2014 VA mental health consult indicates that the Veteran reported that he felt sad and unhappy most of the time. He also endorsed some problems with concentration. He noted that he mostly kept to himself. He had little energy and felt tired frequently. The Veteran also indicated that he experienced cold sweats and difficulty sleeping. He was anxious and worried that "something bad" would happen to him, noting that he first started experiencing panic attacks after his first deployment in 2006. He was detached from others and nervous in social situations. He also indicated that he felt the need to check and recheck locks around the house. The Veteran also had intrusive thoughts on a regular basis. Finally, the Veteran also indicated irritability. With respect to his family relationships, the Veteran noted that he lived alone and was close to his children, whom he saw every other weekend. On mental status examination, affect and mood were congruent, and he was sometimes tearful. Eye contact, appearance, behavior, thought process, and speech were within normal limits. A January 2015 VA psychiatric examination indicates that the Veteran reported good relationships with his mother, siblings, and children. He noted that he had been seeking employment but had not been successful. He had not received mental health treatment, but had symptoms including sleep problems, nightmares, rumination, irritability, anhedonia, and feelings of depression. The examiner indicated that the following symptoms applied to the Veteran's psychiatric disorder: depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. On mental status examination, cognitive functioning was within normal limits and the Veteran was alert and oriented with good eye contact. Speech was of normal rate and volume. He was appropriately groomed and denied suicidal or homicidal ideation, or audio/visual hallucination. He was independent in activities of daily living. The examiner diagnosed other specified trauma and stressor related disorder and unspecified depressive disorder and tobacco use disorder. The examiner indicated that the disability was 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. A February 2016 VA examination report indicated that the Veteran was not employed but was actively seeking employment. He was not enrolled in school but was taking online courses. He lived alone. He was not receiving, nor had he ever received, mental health treatment. He noted symptoms of sleep problems, fatigue, night sweats, rumination, anhedonia, feelings of emptiness, tearfulness, poor appetite, persistent irritability, difficulty becoming happy, persistent feelings of sadness/depression. He denied homicidal or suicidal ideation. He did have auditory hallucinations in that he heard someone calling his name. He indicated that he was happiest when he was with his family. The examiner indicated that the Veteran displayed a flat affect and appeared somewhat depressed. Cognitive functioning was within normal limits. He was alert and oriented with fair eye contact. His speech was of normal rate and volume. He was appropriately groomed and denied suicidal/homicidal ideation. Symptoms associated with the Veteran's diagnoses included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner diagnosed major depressive disorder, unspecified stressor trauma related disorder, and tobacco use disorder. He examiner determined that the disability was productive of occupational and social impairment with occasional decrease in efficiency. The examiner further commented that the Veteran's social and occupational impairment was moderate. During the Veteran's April 2020 Board hearing, the Veteran testified that he was short-tempered and irritable. He noted that he had a good relationship with his sister, and though he sometimes went to family functions, he tried to distance himself. He indicated that he had one person that he would call a friend, with whom he served, and that they had been through similar experiences. He was working part-time, but distanced himself around others and kept away from others. He noted worsening symptoms of mood and depression. On VA examination in August 2020, the Veteran reported that he was working in client care services helping patients, and had been for the past 3 years. The examiner indicated that the following symptoms applied to the Veteran's psychiatric disability: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted that on exam, the Veteran presented in casual, appropriate clothing. He was alert and oriented. His affect appeared depressed and flat. The Veteran stated that his mood was depressed and he did not like being bothered. No other significant cognitive impairment or psychosis was observed during the exam. The examiner diagnosed other specified trauma and stress related disorder and major depressive disorder. The examiner found that the disability was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. With respect to functional impact, the examiner indicated that the Veteran had difficulty attending to or was easily distracted from the task at hand, that he had difficulty maintaining concentration and focus, had intrusive thoughts which interfered with his ability to stay focused, had difficulty accepting supervision or receiving instruction without becoming angry, that he had difficulty functioning around other people, and that he could not tolerate being around anyone for more than a few minutes. The examiner also indicated that he was depressed and fatigued due to poor sleep. He also had mental health problems such as a panic attacks, irritability, and suspiciousness that interfered with the ability to work. The aforementioned evidence reflects that, throughout the appeal period, the Veteran's psychiatric disorder has been manifested by anger, anxiety, depression, sleep impairment, disturbances in motivation and mood, isolative behavior, concentration and memory impairment and difficulty maintaining relationships. In the opinion of the Board, the frequency, severity and duration of these symptoms have been productive of occupational and social impairment with deficiencies in work, family relationships, judgment and mood. Such symptomatology is consistent with a higher 70 percent rating. In reaching this determination, the Board notes that the evidence has varied, particularly with regard to the VA examiners' overall conclusions as to the level of impairment caused by the Veteran's psychiatric disorder. However, during the period prior to the August 2020 exam, there was evidence of sleep impairment, difficulty in establishing relationships and adapting to stressful circumstances, depression, social isolation, irritability, panic attacks and low motivation. The Veteran also noted worsening symptoms at the April 2020 Board hearing prior to the August 2020 exam. Accordingly, the Board finds that a 70 percent rating is warranted prior to August 4, 2020. However, at no point during the period of the appeal is the service-connected psychiatric disorder shown to have met the criteria for a rating in excess of 70 percent. As noted, a 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; persistent delusions; 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 closes relatives, own occupation, or own name. Although no particular symptom is required, the probative evidence does not show such symptoms as delusions, hallucinations, disorientation to time or place severe memory loss, gross impairment in thought process, persistent danger to himself or others, or grossly inappropriate behavior. Nor has the Veteran presented with symptoms of similar severity. Notably, with respect to social functioning, the record reflects that although the Veteran is socially withdrawn, he reports good relationships with his children and other family members. Thus, it cannot be said that he has "total" social impairment, and such is consistent with the findings on examination. As to occupational impairment, the record reflects that the Veteran was either actively seeking employment, or was working at least on a part-time basis. Without evidence of more serious social impairment, a higher rating is not warranted. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Accordingly, the Board finds that a 70 percent rating other specified trauma and stress related disorder with major depressive disorder prior to August 4, 2020, is warranted, but that a rating in excess of 70 percent for either period is not warranted. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to a rating in excess of 50 percent for obstructive sleep apnea. The Veteran's service-connected obstructive sleep apnea is evaluated under the rating criteria for sleep apnea syndromes, which includes obstructive, central, and mixed sleep apneas. A 100 percent rating is assigned when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; a tracheostomy is required. The current 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. 38 C.F.R. § 4.97, DC 6847. On VA examination in February 2016, the Veteran reported that he used a CPAP and slept approximately 7 hours per night, but did not always have full relief of symptoms (snoring, tired in morning). He was going to have a new titration study to check his CPAP setting. The examiner noted no other pertinent findings, and indicated that the disability did not impact the Veteran's ability to work. During the Veteran's April 2020 Board hearing, he testified that he felt that his sleep apnea had gotten worse. He indicated that no doctors had told him that he had respiratory failure, but that he did stop breathing at times. He indicated that he had to switch his CPAP mask, but he still had episodes of choking while using the machine. On VA examination in August 2020, the examiner noted that the Veteran's sleep apnea had been treated with a CPAP machine, and that he had been advised to exercise, lose weight, and reduce alcohol consumption. Other pertinent findings included persistent daytime hypersomnolence, but not carbon dioxide retention, chronic respiratory failure, cor pulmonale, or requirement of tracheostomy. The examiner commented that the disability caused no restrictions for job activities. VA treatment records also reflect assessment of sleep apnea and use of a CPAP, but not chronic respiratory failure or tracheostomy. Based on the aforementioned competent evidence of record, the Board finds that the evidence fails to demonstrate that the Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale, nor is there indication of tracheostomy. Accordingly, there is no basis upon which to assign a rating in excess of 50 percent for sleep apnea at any time during the appeal period. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU. The Veteran filed for a TDIU in 2015, noting that he was not employed at the time. However, at the time of the April 2020 Board hearing, the Veteran reported that he was working in client care services, but only on a part-time basis and was making approximately $700 per month. A June 2018 VA treatment record indicates that the Veteran was working in janitorial services at a nursing home, with a 2020 report noting that he was still working at a nursing home. Even though the Veteran may be employed, at least for a portion of the appeal period, a TDIU may still be awarded where the employment was marginal. 38 C.F.R. § 4.16(a). Marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist when earned annual income exceeds the poverty threshold, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop. Currently, there is insufficient evidence in the claims file to determine the Veteran's dates and types of employment and whether the Veteran's employment is marginal. As such, the AOJ should request that the Veteran submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. The AOJ should request information from the Veteran's employers, to include earnings and the reason for leaving employment. The matter is REMANDED for the following action: 1. Request that the Veteran complete an updated VA Form 21-8940 and submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. Then request information from the Veteran's previous employers, to include earnings and the reason for leaving employment. This should include any evidence showing that the Veteran's employment is in a protected environment such as a family business or sheltered workshop. All actions to obtain the requested information should be documented fully in the claims file. R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.