Citation Nr: 21013326 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-13 077 DATE: March 9, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a sleep disorder. A 70 percent rating, but no higher, for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted from July 18, 2016. REMANDED Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. A May 2005 rating decision denied service connection for a sleep disorder and an August 2009 rating decision found no new and material evidence for entitlement to service connection for a sleep disorder had been received to reopen the claim; the Veteran did not appeal either decision, and new and material evidence was not received within one year of notice of their issuance. 2. Evidence received more than one year since the August 2009 rating decision is neither cumulative nor redundant of evidence at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a sleep disorder. 3. Throughout the entire appeal period, the Veteran’s PTSD and MDD have been manifested by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The May 2005 and August 2009 rating decisions denying the claim of entitlement to service connection for a sleep disorder are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a sleep disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for a 70 percent rating, but no higher, for an acquired psychiatric disorder, to include PTSD and MDD, are met from July 18, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Codes (DCs) 9411-9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1997 to January 1998 and from July 2003 to November 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board denied, in relevant part, reopening service connection for a sleep disorder and a rating in excess of 50 percent prior to December 27, 2018, and in excess of 70 percent thereafter for an acquired psychiatric disorder, to include PTSD and MDD. In the same decision the Board also denied reopening service connection for a left ankle disability. The Veteran timely appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR) filed by the Parties, the Court vacated and remanded the Board decision as to the issues of reopening service connection for a sleep disorder and a rating in excess of 50 percent prior to December 27, 2018, and in excess of 70 percent thereafter for an acquired psychiatric disorder, to include PTSD and MDD. The Court noted the Veteran did not wish to appeal the issue of reopening service connection for a left ankle disability and dismissed the appeal as to this issue. Initial Matters As an initial matter, the Board notes that the Veteran’s representative has submitted statements consisting of pages of boilerplate language that is not in any way specific to the Veteran’s appeal, including a general assertion that he preserves for appeal “all legal errors, errors in fact-finding, failure to follow VA Adjudication Manual M21-1, failure to discharge the duty to assist, failure to apply the doctrine of reasonable doubt, and other due process errors.” See, e.g., April 2019 VA Form 9. Such vague, unspecific assertions of general due process errors do not amount to a specific procedural argument in this case and thus need not be addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board’s obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board). Moreover, in his substantive appeal, the Veteran’s attorney incorrectly indicated that VA must advise him of “the existence of negative evidence and how to counter this evidence.” Notably, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has specifically found that the duty to notify “may be generic in the sense that it need not identify evidence specific to the individual claimant’s case (though it necessarily must be tailored to the specific nature of the Veteran’s claim).” See Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) at 1062. The Court has further stated since 38 U.S.C. § 5103(a) “deals only with information and evidence gathering prior to the initial adjudication of a claim...it would be senseless to construe that statute as imposing upon the Secretary a legal obligation to rule on the probative value of information and evidence presented in connection with a claim prior to rendering a decision on the merits itself.” See Locklear v. Nicholson, 20 Vet. App. 410, 416 (2006). In sum, the Veteran’s attorney has indicated no valid duty to notify inadequacy in this case. New and Material Evidence 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a sleep disorder. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO denied the Veteran’s initial claim for entitlement service connection for a sleep disorder in a May 2005 rating decision based on no evidence of a current disability. Subsequently, the RO declined to reopen the claim for no new and material evidence in an August 2009 rating decision. The Veteran was informed of these decisions in June 2005 and August 2009, respectively, he did not appeal the decisions, and new and material evidence was not received within one year of notice of issuance of the decisions. Thus, the May 2005 and August 2009 rating decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the most recent final August 2009 rating decision constitutes new and material evidence as to the Veteran’s service connection claim for a sleep disorder. Specifically, in an October 2016 Mental Disorders VA examination report, the examiner indicated a current diagnosis of unspecified sleep-wake disorder. This evidence is new, as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for a sleep disorder and the claim is reopened. Increased Ratings 2. A 70 percent rating, but no higher, for an acquired psychiatric disorder, to include PTSD and MDD, is granted from July 18, 2016. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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 evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The Secretary, VA, determined DSM-5 applies to claims certified to the Board on and after August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). Here, the RO first certified the Veteran’s increased rating appeal to the Board in June 2019; thus, this claim is governed by the DSM-5. Notably, the DSM-5 does not employ Global Assessment of Functioning (GAF) scores to identify levels of disability. The Veteran’s PTSD and MDD is rated pursuant to DCs 9411-9434. 38 C.F.R. § 4.130, DCs 9411, 9434. Under 38 C.F.R. § 4.130, DCs 9411 and 9434, a 50 percent rating is warranted where the disorder is manifested by 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 warranted where the disorder is manifested by 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. A 100 percent rating is warranted where the disorder is manifested by 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. 38 C.F.R. § 4.130; DCs 9411-9434. The symptoms listed in DC 9411 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). III. Analysis The Veteran is currently in receipt of a 30 percent rating from November 5, 2004, a 50 percent rating from January 7, 2009, and a 70 percent rating from December 28, 2018, for his service-connected acquired psychiatric disorder, to include PTSD and MDD. The appeal period is from July 18, 2016, the date of his increased rating claim, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Initially, the Board notes that the Veteran has diagnoses of posttraumatic stress disorder, major depressive disorder, and persistent depressive disorder. See October 2016 and December 2018 VA examination reports. The evidence of record does not sufficiently distinguish the symptoms of all diagnoses from each other and many symptoms overlap. Thus, the Board’s instant discussion attributes all of the Veteran’s mental health symptoms to his service-connected PTSD and MDD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board finds that a 70 percent rating, but no higher, is warranted from July 18, 2016, based on occupational and social impairment, with deficiencies in most areas, due to such symptoms as irritable behavior and angry outbursts (with little or no provocation); hypervigilance; suicidal ideation; exaggerated startle response; suspiciousness; difficulty in adapting to stressful circumstances (including work or a work-like setting); difficulty establishing and maintaining effective relationships; and an inability to establish and maintain effective relationships. Specifically, during the course of his normal VA treatment, the Veteran was afforded a series of mental status examinations that document his increased depressed mood; lack of motivation; irritability; sleep disturbance; restricted affect; and thoughts of suicide. See July 2015 through January 2019 VA treatment records. The Veteran was afforded a VA examination in October 2016. He reported nightmares, daily irritability, aggressive behaviors in his sleep, occasional thoughts of suicide, and angry outbursts two to three times per week. The examiner found depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and suicidal ideation. The examiner observed him to be cooperative; with grooming, hygiene, insight, and judgment adequate; speech, psychomotor behavior, and intelligence were within normal limits; mood was slow; affect was reactive and consistent; orientation was intact; thought process was logical and goal oriented; and attention/concentration and memory were grossly intact. The examiner stated the Veteran reported frequent passive suicidal ideation without intent or plans and denied hallucinations and delusions. The Veteran was afforded another VA examination in December 2018, at which time he reported depressed mood, low energy, suicidal ideation, and lack of concentration. The examiner found irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep); depression; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; and suicidal ideation. The Veteran has reported recurrent suicidal ideation throughout the appeal period and has a history of suicidal thoughts dating back to at least January 2009. The Court has recently held that “the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). To this end, the Veteran has consistently reported occasional suicidal thoughts throughout the appeal period. See October 2016 and December 2018 VA examination reports and August 2017 through January 2019 VA treatment records. Thus, given the medical and lay evidence of record, the Veteran’s psychiatric symptoms including his suicidal thoughts; irritability and outbursts of anger; disturbances of motivation and mood; difficulty in establishing relationships; difficulty adapting to stressful circumstances; and an inability to establish and maintain effective relationships have resulted in occupational and social impairment with deficiencies in most areas supporting a 70 percent rating from July 18, 2016. The Veteran’s symptoms, however, do not approximate a rating of 100 percent as to result in total occupational and social impairment at any time throughout the appeal period. In this regard, while there is some indication of suicidal thoughts, and occasional decreased in psychomotor activity, it is not of the severity, frequency, or duration contemplated by a total rating, as the Veteran has consistently denied any plan or intent to harm himself. Further, there is no evidence in the record of gross impairment in thought processes or communication; persistent danger of hurting self or others; grossly inappropriate behavior; persistent delusions or hallucinations; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) disorientation to time or place; or memory loss for own occupation or own name (see July 2015 through January 2019 VA treatment records and October 2016 and December 2018 VA examination reports, which consistently note appropriate appearance and hygiene, coherent speech, intact insight and judgment, normal thought process/content, normal perception, and normal orientation), or any other symptoms of similar severity, frequency or duration. The Board acknowledges that the symptoms noted in DCs 9411-9434 are not exhaustive, but merely demonstrative of the type and severity of symptoms necessary to approximate the 100 percent evaluation. However, in the present case, the Veteran has not shown any symptomatology reflective of total social and occupational impairment at any time during the appeal period, and his 70 percent rating is consistent with his PTSD and MDD symptomatology. As such, a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.7. Finally, the Board notes that the JMPR indicated that the Veteran would argue that he was entitled to separate ratings for his PTSD and MDD upon remand, and that the Board should adequately address this argument. See JMPR at 6-7. The Board notes that no such argument has since been submitted. See October 2020 Waiver Form (noting no additional argument or evidence to submit). REASONS FOR REMAND 3. Entitlement to service connection for a sleep disorder is remanded. The Veteran seeks service connection for a sleep disorder he maintains is due to his active service. He was afforded VA Mental Disorders examinations in October 2016 and December 2018. The October 2016 VA examiner noted a diagnosis of unspecified sleep-wake disorder; however, the examiner was unable to provide an opinion without mere speculation as to whether his sleep disorder was primarily due to his depression. In discussing the issue, the examiner noted multiple potential etiologies, including restless legs, circadian rhythm disruptions (swing shift work), depression, nightmares, and possibly sleep apnea (based on reports from his wife that he stops breathing in his sleep). The examiner further stated that a sleep study with interpretation by a sleep specialist would be required to rule out potential organic etiologies related to his sleep disturbance in order to say that his sleep disturbance was primarily due to his depression and that if other competing etiologies were ruled out, he would attribute his sleeping problems to his diagnosis of depression, but not as a separate diagnosis as sleep disturbance is a symptom of depression. The December 2018 examiner found no current diagnosis for a separate sleep disorder at all and indicated that the Veteran’s sleep difficulties were due to his PTSD and depression and not a separate mental health condition. As such, given the October 2016 examiner’s statements and reports from the Veteran’s wife that he stops breathing in his sleep, the Board finds a VA Sleep Disorders examination (and not a mental health examination), including a sleep study, is needed on remand to determine whether the Veteran has a separate sleep disorder and the etiology of the same. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA Sleep Disorders examination to determine the nature and etiology of his sleep disorder disability. The examiner must address each of the following: (a) Diagnose any sleep disorder present since July 2016, to include unspecified sleep-wake disorder. If diagnosis of unspecified sleep-wake disorder is not warranted, please reconcile your finding with diagnosis of the same in the October 2016 VA examination report. (b) For each sleep disorder diagnosed in part (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder: (1) had its onset in service or is otherwise related to service; (2) is proximately due to PTSD and MDD; or (3) has been aggravated (worsened) by PTSD and MDD. In addressing these questions, the examiner should discuss whether any diagnosed sleep disorder, to include unspecified sleep-wake disorder, is a symptom of his service-connected PTSD and MDD disorder or a separate and distinct disorder with another etiology. A complete rationale must be provided for all opinions and conclusions expressed. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.