Citation Nr: 21075717 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 12-29 671 DATE: December 21, 2021 ORDER Entitlement to an initial rating of 50 percent from October 23, 2010, through February 23, 2019, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as due to herbicide exposure or service-connected PTSD, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure or service-connected PTSD, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity from October 23, 2010, through February 23, 2019. CONCLUSION OF LAW The criteria for a 50 percent disability rating for PTSD from October 23, 2010, through February 23, 2019, 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to July 1973. He died in April 2021, and the Appellant, the Veteran's surviving spouse, became the substitute claimant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 and February 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a RO hearing before a Decision Review Officer (DRO) in March 2015 and before the undersigned Veterans Law Judge (VLJ) in a January 2019 Board hearing via videoconference. Transcripts of the hearings have been associated with the file. In September 2020, the Board denied the claims of entitlement to service connection for obstructive sleep apnea and hypertension, and denied an initial rating in excess of 30 percent from October 23, 2010, through February 23, 2019 for PTSD. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2021, the Appellant, through her attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (Joint Motion). In September 2021, the Court granted the motion and remanded the case to the Board. The Court instructed the Board to remand the denied service connection claims to obtain new medical opinions, and to provide adequate reasons or bases that addresses the appropriate rating for the Veteran's PTSD between October 23, 2010, and February 23, 2019. Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38C.F.R. §4.7. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38C.F.R. §4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to an initial rating in excess of 30 percent from October 23, 2010, through February 23, 2019 for PTSD Prior to his death, the Veteran asserted entitlement to a rating in excess of 30 percent for PTSD from October 23, 2010, through February 23, 2019, rated under Diagnostic Code 9411. The Court determined that when addressing the period from October 23, 2010, through February 23, 2019, the Board failed to consider evidence aside from an August 2012 VA examination report. Therefore, a more thorough review of the evidence regarding the Veteran's PTSD during the relevant period will be discussed below. The Veteran's private psychologist, Dr. R.T., submitted a letter in March 2011. Dr. R.T. stated that he provided counseling services for the Veteran from September 1996 through November 2007. He noted that the Veteran presented great difficulty with trusting others, anger issues, and difficulty with developing and maintaining intimacy in his adult relationships. Treatment notes from an April 2011 VA PTSD screening test show the Veteran affirmed that he felt depressed and had little interest or pleasure doing things for several days, experienced nightmares, and felt detached. The Veteran was afforded a VA PTSD examination in August 2012, during which he was noted to have diagnoses of PTSD, and alcohol dependence in remission secondary to PTSD. The Veteran reported he had temper problem. The VA examiner noted the Veteran experienced the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Based on the in-person examination and review of the Veteran's medical records, the VA examiner determined the Veteran's PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This finding is consistent with a 30 percent rating. During a March 2015 RO hearing, the Veteran testified that he has nightmares about his time in service in Vietnam. He further explained that he isolated himself, even from his wife, and that he was unable to relate well with people. He stated he regularly checked to make sure the doors were locked. The Appellant was also present at the RO hearing, and stated the Veteran had extreme mood changes, difficulty communicating, and his temper was out of control. April 2015 VA treatment notes show the Veteran reported a history of nightmares, flashbacks, and alcohol dependency since returning from Vietnam. He denied having any suicidal or homicidal thoughts, nor did he report any symptoms of mania, psychosis, or obsessive compulsive disorder. The claims file does not contain any medical records dated between April 2015 and February 2019 that reference the Veteran's PTSD and/or mental health status. During the January 2019 Board hearing, the Veteran's representative asserted that the August 2012 VA examination report endorsed rating criteria consistent with both the 30 percent and 50 percent evaluations. The Veteran testified that since Vietnam he had recurrent nightmares about being under attack, and that he often checked to make sure the doors were locked. The Veteran's representative noted that the August 2012 VA examiner did not properly endorse the amount of suspiciousness the Veteran felt towards other people, and how he rarely leaves his home. Resolving reasonable doubt in favor of the Veteran, the Board finds that from October 23, 2010, through February 23, 2019, the severity of the Veteran's PTSD more closely approximated a 50 percent rating. The evidence discussed above shows the Veteran had a range of PTSD symptoms that were predominately associated with the 30 percent (suspiciousness, depressed mood, chronic sleep impairment, mild memory loss) and 50 percent (disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships) ratings. We acknowledge that the Veteran reported that he repeatedly checked the locks while at home, and that such behavior is akin to an obsessional ritual, a symptom associated with a 70 percent rating. However, when considering the full disability picture from October 23, 2010, through February 23, 2019, the Board finds the preponderance of the evidence is against a finding for a rating in excess of 50 percent. A review of the evidence showed that during the relevant period, there were no reports of record of other symptoms associated with the 70 or 100 percent ratings. We also note that during the Board hearing and in a September 2012 statement, the Veterans' representative specifically noted that the evidence supports a 50 percent rating. Accordingly, the Veteran's PTSD warranted a 50 percent rating, and no higher, from October 23, 2010, through February 23, 2019 REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as due to herbicide exposure or service-connected PTSD is remanded. 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure or service-connected PTSD is remanded. As noted above, the Court instructed the Board to remand the claims of entitlement to service connection for obstructive sleep apnea and hypertension to obtain new medical opinions, as the opinions provided by a January 2020 VA examiner were inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court determined that the VA examiner's opinions and rationale regarding obstructive sleep apnea were inadequate because the VA examiner (1) improperly relied on a lack of contemporaneous service medical records documenting the condition despite the Veteran's statements that he snored during service; (2) failed to explain why the medical evidence establishing a relationship between PTSD and sleep apnea was not "compelling" to establish a cause-and-effect relationship; and (3) did not explain how the Veteran's use of his CPAP machine to sleep better meant his PTSD did not aggravate sleep apnea. Regarding the hypertension claim, the Court found the VA examiner did not (1) address testimony from the Veteran at his RO hearing when he explained that the hypertension onset during service due to his headaches; (2) explain why other possible etiologies were more likely the cause of hypertension than herbicide exposure; and (3) state whether the Veteran's service-connected PTSD with alcoholism aggravated his hypertension. Therefore, remand is required to obtained new VA medical opinions. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Subsequent to the Veteran's death, his representative asserted in a brief submitted in September 2021 that a claim for TDIU was raised by the record based on medical records from December 2010 and February 2020. See Rice v. Shinseki, 22 Vet. App. 477 (2009). The Board notes that treatment records from January 2011 state the Veteran was working full time, and the Veteran also testified that he worked during the March 2015 RO hearing. However, the claim must be appropriately developed to ascertain the Veteran's employment history, to include having the Appellant complete a VA Form 21-8940 to assist with gathering relevant evidence. Further, the claim of entitlement to TDIU is inextricably intertwined with the remanded issues addressed above and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Send the Appellant notice regarding TDIU and complete any necessary development, including sending the Appellant an application form (VA Form 21-8940) and advising her of the necessity of notifying VA of the Veteran's employment history and his educational background for proper adjudication of this matter. The Appellant should be asked to specifically identify by date the period or periods during which the Veteran believed he was unable to work due to service-connected disabilities. 2. Obtain the following addendum opinions from an appropriate clinician regarding obstructive sleep apnea: (a.) Was sleep apnea at least as likely as not related to service, including exposure to herbicides? Attention is drawn to the Veteran's reports of snoring during service. Provide a rationale to support the opinion. (b.) Was sleep apnea at least as likely as not proximately due to service-connected PTSD? Provide a rationale to support the opinion. (c.) Was sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD. Provide a rationale to support the opinion. Note, that if discussing how the use of a CPAP machine improved the Veteran's sleep, an explanation must still be provided as to whether PTSD aggravated sleep apnea. 3. Obtain the following addendum opinions from an appropriate clinician regarding hypertension: (a.) Was hypertension at least as likely as not related to service, including exposure to herbicides? Provide a rationale to support the opinions. Attention is drawn to the Veteran's reports of headaches during service. If it is determined that other possible etiologies were more likely the cause of hypertension, an explanation must be provided stating why other etiologies are the cause and not herbicide exposure. (b.) Was hypertension at least as likely as not proximately due to service-connected PTSD? Provide a rationale to support the opinion. (c.) Was hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD, to include alcoholism etiologically related to PTSD. Provide a rationale to support the opinion. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.