Citation Nr: 21011533 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-21 492 DATE: March 2, 2021 ORDER 1. For the entire rating period from November 7, 2019 forward, a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. 2. Service connection for sleep disturbance as secondary to a lumbar spine disability is denied. FINDINGS OF FACT 1. For the entire rating period from November 7, 2019 forward, the service-connected PTSD has not been manifested by total social and occupational impairment. 2. The Veteran has a chronic sleep impairment that is a symptom of the service-connected PTSD. 3. The current sleep disturbance is contemplated by the 70 percent disability rating currently assigned for the service-connected PTSD. 4. The current sleep disturbance is neither caused nor worsened in severity by the service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. For the entire rating period from November 7, 2019 forward, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for service connection for sleep disturbance as secondary to a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to September 1981. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on the February 2014 VA Form 9, Appeal to the Board. In January 2020, the Board remanded the issues of service connection for sleep disturbance as secondary to a lumbar spine disability and an increased rating in excess of 70 percent for PTSD for further development. Development has been completed, and the claims are again before the Board. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating PTSD from November 7, 2019 Forward For the entire rating period from November 7, 2019 forward, the Veteran is in receipt of a 70 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 U.S.C. § 4.130. The Veteran asserts generally that the current PTSD symptoms are not adequately contemplated by the currently assigned 70 percent rating. See November 2019 Informal Hearing Presentation. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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); and inability to establish and maintain effective relationships. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the General Rating Formula for Mental Disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” 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.” After a review of all the evidence, lay and medical, the Board finds that, for the period from November 23, 2016 forward, the lay and medical evidence shows that the service-connected PTSD has not manifested in total social and occupational impairment; thus, a higher disability rating in excess of 70 percent is not warranted. A July 2019 primary care note shows a flat mood and affect. The Veteran had a positive response on the suicide screening questionnaire but denied suicidal ideation. A March 2020 VA examination report shows that the Veteran denied suicidal ideation, homicidal ideation, and hallucinations, and reported preferring to be alone and having difficulty maintaining employment due to symptoms. The Veteran also reported significant sleep issues, especially related to dreams of a reported trauma event. The VA examiner in March 2020 opined that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner noted that the Veteran experienced a 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 adapting to stressful circumstances, including work or a work-like setting. VA treatment records throughout the period on appeal from November 7, 2019 forward do not show total social and occupational impairment. VA treatment records reflect that the PTSD symptoms did not include gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, was not in persistent danger of hurting himself or others, did not demonstrate intermittent inability to perform activities of daily living, was not disoriented to time or place, and did not demonstrate memory loss for names of close relatives, own occupation, or own name. In sum, the evidence of record does not show that, for the rating period on appeal from November 7, 2019 forward, the PTSD caused total social and occupational impairment as required for a 100 percent disability rating for PTSD. Rather, the evidence shows that the Veteran experienced symptoms and social and occupational impairment contemplated by a 70 percent rating. For these reasons, the Board finds that for the entire period on appeal, the lay and medical evidence does not show total social and occupational impairment to warrant a higher disability rating in excess of 70 percent for PTSD for the rating period from November 7, 2019 forward. 38 C.F.R. §§ 4.3, 4.7. Service Connection Legal Authority Service connection may be granted 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(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. 38 C.F.R. § 3.303(a),(d). In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). 2. Service Connection for Sleep Disturbance as Secondary to the Lumbar Spine Disability The Veteran specifically contends that the currently diagnosed chronic sleep impairment is related (secondary) to the service-connected lumbar spine disability. See February 2013 Statement in Support of Claim. The theory of secondary service connection (38 C.F.R. § 3.310) is the sole contention the Veteran has advanced during the period on appeal. As such, the analysis below is focused solely on the theory of secondary service connection under 38 C.F.R. § 3.310. The evidence of record reflects the Veteran has chronic sleep impairment. See March 2020 VA examination. As to the secondary service connection theory (38 C.F.R. § 3.310), the March 2020 VA examiner opined that the current chronic sleep impairment is not caused or aggravated by the service-connected lumbar spine disability. The March 2020 VA examiner reasoned that the current chronic sleep impairment is secondary to and subsumed under the Veteran’s current PTSD diagnosis, so does not warrant a separate diagnosis. The Board finds that the March 2020 VA examiner’s opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale that includes a discussion of medical literature and assesses the significance of a case-specific factual history. For these reasons, the Board finds the March 2020 VA medical opinion to be highly probative. The March 2020 VA examiner specifically addressed the question of whether the Veteran had a diagnosis of a sleep disorder that was separate and distinct from the symptoms of chronic sleep impairment for which he is already being compensated under the 70 percent VA disability rating for PTSD. The March 2020 VA examiner opined that the chronic sleep impairment was subsumed under the current diagnosis of PTSD and did not warrant a separate diagnosis. The VA examiner opined that the current sleep disorder was not caused or aggravated by the service-connected lumbar spine disability. As discussed above, the Board has found that the March 2020 VA examiner’s opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale that includes a review of medical literature a case-specific factual history. In this case, the weight of the evidence shows there is no separately diagnosed sleep disorder separate and distinct from the chronic sleep impairment associated with the service-connected PTSD. The symptom of chronic sleep impairment is already being compensated under the 70 percent disability rating for PTSD so cannot be separately compensated without violating the rule against pyramiding at 38 C.F.R. § 4.14. For these reasons, secondary service connection is not warranted for sleep disturbance, and the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.