Citation Nr: 21076674 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 12-17 828 DATE: December 27, 2021 ORDER A 100 percent disability rating prior to February 2016 for posttraumatic stress disorder (PTSD) is granted. Service connection for sleep apnea, to include as secondary to PTSD is granted. The appeal seeking a disability rating greater than 10 percent for lumbar spondylosis with degenerative joint disease is dismissed. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's PTSD has caused total social and occupational impairment throughout the period on appeal. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's sleep apnea is more likely than not aggravated by his service-connected PTSD. 3. On November 18, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran to withdrawal his claim for a rating greater than 10 percent for lumbar spondylosis with degenerative joint disease. 4. The Veteran's service-connected disabilities are evaluated as 100 percent disabling. 5. The Veteran does not have a separate service-connected disability independently ratable at 60 percent or more disabling. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating prior to February 2016 for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for service connection for sleep apnea, to include as secondary to PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for withdrawal of the claim for a disability rating greater than 10 percent for lumbar spondylosis with degenerative joint disease by the Veteran (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions. In June 2020, the Board, in pertinent part, denied a disability rating greater than 50 percent for the Veteran's service-connected PTSD. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted a Joint Motion for Partial Remand (JMR) vacating the Board's decision and remanded the claim back to the Board for proceedings consistent with the JMR. PTSD 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. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, DC 9411. The criteria authorize the Veteran's currently assigned 50 percent rating for occupational and social impairment with reduced reliability and productivity due to such symptoms such as impaired judgment, impaired abstract thinking, and disturbances of motivation and mood. Id. A 70 percent rating is assigned when PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The maximum 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Upon review of the evidence, the Board finds that a higher 100 percent rating is appropriate. The Veteran underwent a VA examination in August 2010. The examiner found that the Veteran had mild to moderate PTSD. However, the examiner also noted that the Veteran has persistent paranoid delusions, consistent with a 100 percent rating under DC 9411. This finding is consistent with a previous VA examination conducted in October 2009 where the Veteran reported hearing his name being called when no one was present. Further, the August 2010 VA examination found the Veteran was unable to maintain minimum personal hygiene and had difficulty with calculations and biographical and historical information. This finding also supports a 100 percent rating for the Veteran under the relevant DC. Lastly, the Veteran submitted a private mental health evaluation dated September 2021. The examiner found that the Veteran's capacity to communicate has become extremely limited, and he continually struggles with attending to his instrumental activities of daily living. Additionally, the examiner noted that the Veteran's focus, task completion, and capacity to fully follow through with workplace requirements has eroded completely. These findings are all consistent with a 100 percent rating for PTSD. In summary, the evidence shows neglect of personal appearance and hygiene, and other symptoms which suggest total occupational and social impairment consistent with a 100 percent rating. Therefore, a 100 percent rating is warranted for the entire period on appeal. Sleep Apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disability. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Veteran contends that his sleep apnea was caused by his service-connected PTSD. [The Veteran is presently service connected for PTSD] The Veteran underwent a VA examination in April 2019. The examiner ultimately concluded that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by the Veteran's service. Further, an addendum opinion was obtained in July 2019 to address the Veteran's contention that his sleep apnea was the result of his service-connected PTSD. The July 2019 examiner concluded that it is less likely than not that the Veteran's sleep apnea is proximately due to or caused by his service-connected PTSD. Specifically, the examiner stated that there is no physical evidence or scientific studies to support causation between sleep apnea and PTSD. The Veteran provided a November 2021 private medical opinion. This opinion stated that it was more likely than not that the Veteran's sleep apnea is due to his PTSD. Specifically, the physician noted that there is robust medical literature that chronic stress associated with PTSD has been shown to increase the likelihood of developing sleep apnea. The physician ultimately concluded that it is at least likely as not the Veteran's sleep apnea is strongly clinically correlated to his severe PTSD and not merely explainable by structural changes in his oropharynx, becoming aged, or the development of obesity. The Board finds the evidence to be in relative equipoise. If the evidence is supportive or is in relative equipoise, then the Veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for sleep apnea is granted. 38 C.F.R. § 3.303(b). Lumbar Spondylosis with Degenerative Joint Disease The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In correspondence dated and received in November 2021, the Veteran's representative indicated that the Veteran wished to withdraw his Board appeal for a higher rating for his lumbar spondylosis with degenerative joint disease and did not wish to pursue any further appellate action regarding the aforementioned issue. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). As such, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. TDIU TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. at 293-94 (noting that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation under 38 U.S.C. § 1114(s)). (Continued on the next page) With the above grant, the Veteran is presently rated at 100 percent for PTSD; therefore, the Veteran would need to have another disability separately rated at 60 percent in order to be statutorily eligible for a TDIU. As the Veteran is not separately rated at 60 percent for any of his other service-connected disabilities, he does not meet the statutory requirements for a TDIU. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate 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.