Citation Nr: 21077207 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 20-00 217 DATE: December 28, 2021 ORDER The appeal to reopen a claim for service connection for obstructive sleep apnea (OSA) is granted. Service connection for OSA is granted. Service connection for a cervical spine condition is granted. Service connection for a lumbar spine condition is granted. Service connection for a right ankle condition is granted. Service connection for a right foot condition is granted. Effective September 2, 2013, an increased rating of 70 percent (but no higher) for service-connected posttraumatic stress disorder (PTSD) is granted. An earlier effective date of September 2, 2013, for a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to TDIU prior to September 2, 2013 (based on the service-connected disabilities that are granted in this decision) is remanded. FINDINGS OF FACT 1. A September 2012 rating decision denied service connection for OSA because there was no report of the condition in service. The decision became final because it was not appealed, and no new and material evidence was received within one year of the rating decision. New and material evidence has been received in the form of December 2020 Board hearing testimony, October 2019 medical literature, and an August 2021 private medical opinion sufficient to reopen the Veteran's claim. 2. The Veteran has a current diagnosis of OSA (See October 2005 and August 2006 private treatment records and an August 2021 private examination); the August 2021 private clinician provided a positive causal link ("nexus") opinion that the Veteran's reports (which the Board finds competent and credible) that his observable sleep problem symptoms started in service indicates that the Veteran's OSA began during service, and opined that it is also at least as likely as not that the Veteran's PTSD caused or aggravated his OSA; thus, a causal link has been established and service connection for OSA is warranted. 3. The Veteran has a current diagnosis of degenerative disc disease of the cervical spine (See March 2010 private treatment records and an August 2021 private examination); at his December 2020 Board hearing, the Veteran provided competent and credible testimony that he did not experience neck problems before service but, after in-service injuries to his cervical spine (specifically pain and spasms from jumping on and off trucks during combat activities and in-service trainings), he began to experience observable symptoms of pain specific to the injured area and that these symptoms persisted and worsened since then and he did not report them during service because he wanted to get promoted and advance his career; therefore, a causal link is established because the Veteran's condition began during service and has persisted since that time. 4. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine (See March 2010 private treatment record, June 2010 VA examination, and an August 2021 private examination); at his December 2020 Board hearing, the Veteran provided competent and credible testimony that he did not experience foot problems before service but, after in-service injuries to his back (specifically, pain and spasms from jumping on and off trucks during combat activities and in-service trainings), he began to experience observable symptoms of pain specific to the injured area and that these symptoms persisted and worsened since then and he did not report them during service because he wanted to get promoted and advance his career; the Board also assigns significant probative weight to the June 2010 VA medical opinion because it is based on accurate facts and provides an adequate rationale, but the Board cannot assign significant probative value to the February 2008 VA examination because no causal link ("nexus") opinion was rendered; therefore, a causal link is established based on the June 2010 positive VA opinion and the Veteran's competent and credible reports that observable symptoms of the condition began during service and have persisted since that time. 5. The Veteran has a current diagnosis of right ankle strain with plantar calcaneal spur, peroneal tendonitis, and degenerative joint disease (See June 2010 VA examination, August 2015 VA examination, and an August 2021 private examination); at his December 2020 Board hearing, the Veteran provided competent and credible testimony that he did not experience foot problems before service but, after in-service injuries to his right ankle, he began to experience observable symptoms of pain specific to the injured area and that these symptoms persisted and worsened since then and he did not report them during service because he wanted to get promoted and advance his career; the Board also assigns significant probative weight to the June 2010 VA medical opinion because it is based on accurate facts and provides an adequate rationale, but the Board cannot assign significant probative value to the August 2015 negative VA opinion because the examiner relied on a lack of in-service symptoms, which is factually inaccurate; therefore, a causal link is established based on the June 2010 positive VA opinion and on the Veteran's competent and credible report that observable symptoms of the condition began during service and have persisted since that time. 6. The Veteran has a current diagnosis of right foot pes planus with plantar fasciitis and enthesophyte formation and peroneal tendonitis (See June 2010 VA examination, August 2015 VA examination, and an August 2021 private examination); at his December 2020 Board hearing, the Veteran provided competent and credible testimony that he did not experience foot problems before service but, after in-service injuries to his right foot, he began to experience observable symptoms of pain specific to the injured area and that these symptoms persisted and worsened since then and he did not report them during service because he wanted to get promoted and advance his career; the Board also assigns significant probative weight to the June 2010 VA medical opinion because it is based on accurate facts and provides an adequate rationale, but the Board cannot assign significant probative value to the February 2008 VA examination because no causal link ("nexus") opinion was rendered; therefore, a causal link is established based on the June 2010 positive VA and the Veteran's competent and credible report that observable symptoms of the condition began during service and have persisted since that time. 7. Affording the Veteran the benefit of doubt, the evidence is at least evenly balanced for and against (that is, in "relative equipoise") finding that the symptoms associated with his service-connected PTSD (including suicidal ideation, impaired impulse control, being easily triggered to anger and over-reacting, and sometimes being paranoid) have caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and more closely approximate a 70 percent disability rating. A higher rating is not warranted because the symptoms have not caused total occupational and social impairment (the Veteran maintains some relationships, specifically with his church and volunteers as a pastor, attends doctors' appointments, and maintains his personal finances). The Board also finds that these symptoms have manifested at this level of severity since at least September 2, 2013 (one full year prior to when VA received the claim for an increased rating). 8. Affording the Veteran the benefit of doubt, the evidence is at least evenly balanced for and against (in "relative equipoise") finding that the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment since at least September 2, 2013 (one full year prior to when VA received his claim for an increased rating for his service-connected PTSD). CONCLUSIONS OF LAW 1. The criteria have been met to reopen a claim for service connection for obstructive sleep apnea (OSA). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria have been met for service connection for OSA. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria have been met for service connection for a cervical spine condition. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria have been met for service connection for a lumbar spine condition. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria have been met for service connection for a right ankle condition. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria have been met for service connection for a right foot condition. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 7. The criteria have been met for an increased rating of 70 percent (but no higher) for service-connected PTSD, effective September 2, 2013. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 4.3, 4.7, 4.16, 4.130, Diagnostic Code (Code) 9411. 8. The criteria have been met for an earlier effective date of September 2, 2013, for TDIU. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from June 1961 to October 1983 (over 20 years) in the U.S. Army. He received numerous decorations and commendations during his career including the Bronze Star, Combat Infantryman Badge, National Defense Service Medal, two Good Conduct Medals, a Parachutist's Badge, Vietnam Service Medal, Vietnam Campaign Medal, Army Commendation Air Medal, two Overseas Service Ribbons and Bars, Army Occupation Medal, Armed Service Reserve Medal, Army Service Ribbon, and the Meritorious Service Ribbon, ultimately retiring at the rank of Major. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision (PTSD) and August 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board has recharacterized the issue of service connection for a right ankle condition to encompass service connection for a right ankle condition and a right foot condition as separate claims. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (Board must consider any disability that "may reasonably be encompassed by" a description of the claim, symptoms reported, and other evidence); Locklear v. Shinseki, 24 Vet. App. 311 (2011) (splitting a claim is within VA's discretion). The Board further finds that the Veteran's April 2008 statement expresses sufficient disagreement with the March 2008 rating decision that it should have been and is now construed as an effective Notice of Disagreement (NOD). As a result, the Board finds the March 2008 rating decision did not become final. 38 C.F.R. §§ 19.52, 20.1103. This finding removes the need for the Veteran to provide new and material evidence to reopen the claims for service connection for a lower back condition and right foot condition (which incorporates right foot and right ankle conditions). Further, this finding and the evidence of record indicates that the correct effective date for service connection for those claims should be the date of the original claim, which is February 1, 2007. [NOTE TO AOJ: Based on the foregoing finding (that the March 2008 rating decision did not become final), the evidence indicates that the correct effective date for the grants of service connection (contained herein) for right foot, right ankle, and lumbar spine conditions will be February 1, 2007 (the date VA received the Veteran's original claims).] As noted above, the Board is REMANDING to the AOJ the issue of entitlement TDIU prior to September 2, 2013, based on the above grants for service connection for the multiple conditions, effective February 2, 2010. Although this matter is currently before the Board (jurisdiction is explained in the section below), the Board does not have the information required to adjudicate whether TDIU is warranted during this period because disability ratings have not yet been assigned. 1. The appeal to reopen a claim for service connection for OSA is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal to reopen a claim for service connection for OSA is granted. SERVICE CONNECTION Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease enumerated in 38 U.S.C. § 1101(a) or 38 C.F.R. § 3.309 is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for OSA is granted. 2. Service connection for a cervical spine condition is granted. 3. Service connection for a lumbar spine condition is granted. 4. Service connection for a right ankle condition is granted. 5. Service connection for a right foot condition is granted. For the reasons outlined in more detail above in the Findings of Fact section, these appeals are granted. 6. Effective September 2, 2013, an increased rating of 70 percent (but no higher) for service-connected PTSD is granted. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. There is a one-year "look-back" provision, but this applies only to claims for increased disability ratings. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Consideration will be given to "staged ratings"; in other words, where the evidence indicates distinct levels of impairment during different periods on appeal, different disability ratings will be assigned for each period. Fenderson v. West, 12 Vet. App. 119 (1999). Psychiatric disorders are rated under 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms comparable to, for example: 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to symptoms comparable to, for example: 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, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. VA will assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. VA will consider social impairment but shall not assign an evaluation solely on the basis of social impairment (that is, occupational impairment must be considered as well). 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Factual Background and Analysis The evidence or record shows that the Veteran's symptoms associated with his PTSD more closely approximate the 70 percent rating criteria contemplated by the Code. The evidence of record shows that at least as early as September 2013, the Veteran's experienced suicidal ideation relating to his PTSD and his experiences during combat and during active-duty service. See December 2020 Board hearing testimony. Further, the Veteran testified that he experienced impaired impulse control, was easily triggered to anger and over-reacting, and generally had to work hard to keep himself under control. Additionally, he testified that he sometimes experiences paranoia when he talks to people. Accordingly, the Board finds that a 70 percent rating for the Veteran's PTSD is appropriate and that he is also entitled to the one-year "look back" period because the severity of his PTSD symptoms long preceded his September 2014 increased rating claim. Thus, the effective date for this 70 percent rating should be September 2, 2013, the date one year prior to when VA received his claim for an increased rating. What remains for consideration is whether the evidence further supports a still higher 100 percent rating at any time during the period on appeal. However, while the Board concedes and is sympathetic to the fact that the Veteran has severe symptoms and impairment that are significantly disabling and interfere with normal functioning, the evidence indicates that they are not comparable to the singularly high threshold presented by the higher 100 percent rating criteria at any time during the period on appeal. In so finding, the Board acknowledges that the Veteran has had a history of problems with mood, thinking, judgment, and occupational functioning in the records noted above (including his history of suicidal ideation) that has at times been expressly evaluated as "severe" and that he has experienced occasional difficulty communicating due to altered speech, significant social withdrawal, difficulty adapting to stressful circumstances, neglect of some personal hygiene, and near-continuous panic or depression. However, while these problems resemble certain types of symptoms or impairment contemplated by the criteria for a higher 100 percent rating (e.g., impairment of thought or communication, interference with routine daily functions, social impairment, risk of self-harm), they do not also resemble the severity or frequency reflected in those criteria. For example, the 100 percent criteria specifically contemplate symptoms that are grossly or persistently disabling or that are otherwise consistent with total functional loss (for example, gross impairment in thought processes or communication, persistent danger of self-harm, intermittent inability to perform routine functions). In contrast, the Veteran's symptoms and impairment shown in both his medical records and statements supporting this appeal falls short of presenting such a dire disability picture. Notably, even with such severe impairments as he has showed, it appears from the record that he was able to communicate an extensive, detailed personal and medical history to the examiner and describe his various stressors, symptoms, and difficulties in significant detail. See November 2014 VA examination. Similarly, although his suicidal ideation is highly concerning, he has never communicated an intent or plan and has consistently endorsed mitigating or protective factors (e.g., family) that would preclude acting on those ideas. There is certainly no evidence or allegation suggesting he has ever been in persistent danger of self-harm. Likewise, the Veteran maintains relationships with his brothers, daughter, is married with a good relationship with his wife, and is a part-time pastor at his church. See December 2020 Board hearing and November 2014 VA examination. In light of the above, the Board finds the preponderance of the evidence is against finding that the criteria for a higher 100 percent rating are met at any point during the periods on appeal. To that extent, the benefit of the doubt rule does not apply, and a disability rating higher than 70 percent is not warranted. 7. An earlier effective date of September 2, 2013, for TDIU is granted. Because a claim for TDIU is essentially a claim for an increased disability rating, effective date regulations for TDIU claims include the one-year "look-back" period. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Hurd v. West, 13 Vet. App. 449 (2000). Further, as discussed above, the Veteran's PTSD is now rated as 70 percent disabling, effective September 2, 2013 (due in part to this rule). After affording the Veteran the benefit of doubt, the Board finds the evidence of record is at least evenly balanced for and against finding that the Veteran's service-connected PTSD precludes him from obtaining and maintaining substantially gainful employment since at least September 2, 2013. Specifically, at his December 2020 Board hearing, the Veteran provided competent and credible testimony that he has not worked since 1998 due to his service-connected disabilities. The Veteran was granted TDIU from September 2, 2014 based on the same factual premise that existed during the year before September 2, 2014. Therefore, the one-year "look back" rule applies and, for this reason (as well as those outlined in more detail above in the Findings of Fact section), an earlier effective date of September 2, 2013, is granted for TDIU. However, during this appeal period while the claims above have been before the Board, service connection for other disabilities has been granted (in this decision) and the evidence suggests that the correct effective date for those awards of service connection may be earlier than September 2, 2013. Therefore, while the Board has jurisdiction over the appeal for an earlier effective date for TDIU, the evidence (for example, the Veteran's testimony about being unemployed since 1998) has raised the question of whether the Veteran is entitled to an effective date for TDIU that is even earlier than September 2, 2013. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU rating claim is part of a claim for a higher rating when raised by the record or asserted by the Veteran or raised by the record, for example, by evidence of unemployability); see also Harper v. Wilkie, 30 Vet. App. 356 (2018) (Once TDIU is at issue, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status.). Therefore, the Board has split the matter of entitlement to TDIU before September 2, 2013, and will address it in the REMAND section, below. See Locklear, 24 Vet. App. at 311. REASONS FOR REMAND As noted above, the Veteran's April 2008 statement is now being construed as an effective NOD, the March 2008 rating decision did not become final, and therefore the claims on appeal have been pending and unadjudicated since the Veteran initially applied for service connection. See 38 C.F.R. §§ 19.52, 20.1103. This finding and the evidence of record suggest that the correct effective date for service connection for those claims should be the date of the original application for benefits, which is February 1, 2007. Therefore, entitlement to TDIU prior to September 2, 2013, must be addressed on remand, after disability ratings have been assigned for the newly service-connected disabilities. The matter is REMANDED for the following action: 1. Adjudicate the downstream issue of disability ratings for the disabilities for which service connection has been granted in this decision. [CONTINUED ON NEXT PAGE] 2. Once disability ratings have been assigned, readjudicate the question of entitlement to TDIU prior to September 2, 2013. If the benefit sought is not granted in full, ensure that the Veteran receives all relevant information regarding the right to appeal. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.