Citation Nr: 21024153 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-20 336 DATE: April 22, 2021 ORDER Entitlement to an initial disability rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for Meniere's disease, also claimed vertigo, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary PTSD, is remanded. FINDING OF FACT Throughout the period on appeal, the severity, frequency, and duration of the Veteran’s psychiatric symptoms has more closely approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 50 percent for PTSD 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 June 1969 to May 1971. His medals include the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) from September 2015 and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board denied the Veteran’s claims for service connection for Meniere’s disease, GERD, and sleep apnea. In a September 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s June 2019 decision to the extent that it denied entitlement to service connection for Meniere’s disease, GERD, and sleep apnea and remanded the claim to the Board for further adjudication. 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD Service connection for PTSD was granted in a December 2017 rating decision and assigned an initial disability rating of 30 percent, effective August 6, 2014. 38 C.F.R. § 4.130, Diagnostic Code 9411. Thereafter, the Veteran filed a timely notice of disagreement with the evaluation assigned. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for 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-term 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. Id. A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. The symptoms listed in the General Rating Formula 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, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. 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 based on social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. Upon review of the record and after resolving all doubt in the Veteran’s favor, the Board finds that a rating of 50 percent is warranted during the period of the appeal. The Veteran submitted a disability benefits questionnaire (DBQ) and private psychological evaluation dated July 2016, which indicates that the Veteran endorsed symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. The Veteran’s level of functioning was characterized as occupational and social impairment with reduced reliability and productivity. The Veteran underwent a VA examination in July 2017, during which he endorsed symptoms of depressed mood; anxiety; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was alert and oriented; his insight adequate; affect normal; and his immediate, recent, and remote memory was within normal limits. The Veteran reported that he was able to perform activities of daily living and he denied suicidal or homicidal ideations. The examiner characterized the Veteran’s level of functioning as occupational and social impairment due to mild or transient symptoms. During a November 2019 VA examination, the Veteran endorsed symptoms of anxiety; suspiciousness; and disturbances of motivation and mood. The examiner indicated that the Veteran presented as well-groomed and neatly dressed. He was oriented to person, place, time, and circumstance; his mood was anxious with constricted affect; and his judgment and insight appeared intact. The examiner also noted that there was no evidence of psychosis, delusions, or perceptual disturbance and the Veteran denied suicidal or homicidal ideations. The examiner characterized the Veteran’s level of functioning as occupational and social impairment due to mild or transient symptoms A review of the Veteran’s treatment records do not show symptoms more severe than those noted during the VA examinations. In sum, the record shows that the Veteran experienced symptomatology consistent with the 50 percent rating such as constricted affect, difficulty in establishing and maintaining effective work and social relationships, and panic attacks less than once a week. Accordingly, after resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s disability level more nearly approximates a finding of occupational and social impairment with reduced reliability and productivity. However, a rating higher than 50 percent is not warranted at any time during the course of the claim. In this regard, the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. While the 2016 private Disability Benefits Questionnaire indicated the Veteran suffered from near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; had difficulty in establishing and maintaining effective work and social relationships; and had difficulty adapting to stressful circumstances, these symptoms were not mentioned by the Veteran during VA examinations or during treatment. Moreover, even the private examiner indicated his symptomatology resulted in reduced reliability and productivity, rather than resulting in deficiencies in most areas or total occupational and social impairment. Additionally, the VA treatment records reflect that the Veteran has a few friends who are very supportive and that most people he associates with are through his church. He also stated his wife is patient with him. Additionally, in July 2017 VA neck examination noted the veteran was semi-retired, flipped a house recently, and has helped a friend with marketing and sales. Thus, the evidence does not reflect that he had deficiencies in most areas or total occupational and social impairment during the period on appeal. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that in the context of a 70 percent rating, 38 C.F.R. § 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. Vazquez, 713 F.3d 112, 118 (Fed. Cir. 2013). Although a veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas." The Federal Circuit also stated that entitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation. For the reasons set forth above, the Board finds that such level of impairment has not been more nearly approximated in this case. Accordingly, the Board concludes that the preponderance of the most probative evidence is against a rating higher than 50 percent for PTSD throughout the appeal period. As a final matter, the Board notes that on the notice of disagreement, the Veteran’s attorney stated, "based on common errors committed by the VA, the Veteran argues and preserves the following:" and included boilerplate on topics including a total disability based on unemployability and inadequate examination. However, no argument specific to the Veteran’s case was provided, nor were any such arguments included in later filings by the Veteran or his attorney. As such, because the record does not reflect the examinations were inadequate or that the Veteran is unemployable due to service-connected disability, no further action is necessary. REASONS FOR REMAND 2. Entitlement to service connection for Meniere's disease is remanded. The Veteran asserts that his currently diagnosed Meniere’s disease is related to temporary deafness and ringing in the ears he experienced after a mortar explosion during service. In the June 2019 decision, the Board found the Veteran had a current diagnosis of Meniere’s disease. The Board also found that the Veteran’s contention that he experienced an exploding rocket mortar during service was consistent with the circumstances and conditions of his service. However, the Board concluded the Veteran was not competent to address the nexus question and no medical opinion was warranted because there only evidence of any relationship between the Veteran’s Meniere’s disease and an exploding rocket is the Veteran’s assertion. In the September 2020 Memorandum Decision, the Court acknowledged the Board’s finding that the veteran was not competent to address the nexus question because it was medical in nature. However, the Court determined that the Board failed to discuss the Veteran’s statements regarding in-service symptoms and thus, it is not clear what the Board considered about the in-service event as it relates to Meniere’s disease. The Board concludes that a VA opinion is needed. 3. Entitlement to service connection for obstructive sleep apnea is remanded. In the September 2020 Memorandum Decision, the Court found that the Board erred when it failed to address a July 2016 private medical opinion which found that there was a connection between the Veteran’s weight gain, PTSD, and sleep apnea. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020) (service connection may be established on a secondary basis for a disability which would not have occurred but for obesity that was caused or aggravated by a service-connected disability). Additionally, in July 2017, a VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused or aggravated by his service-connected PTSD. However, the examiner did not address whether the Veteran’s sleep apnea was caused or aggravated by weight gain caused by his service-connected PTSD. Id. As such, the finds an addendum opinion is needed. 4. Entitlement to service connection for GERD is remanded. With regard to the Veteran’s claim for service connection for GERD, the Board finds that an additional opinion is needed. The Board notes that the Veteran has asserted that his GERD is related to his service-connected PTSD. In the June 2019 decision, the Board concluded that a July 2016 private medical opinion was entitled to less probative weight than a July 2017 VA medical opinion because the private opinion failed to explain how three articles discussing a connection between PTSD and GERD are related to the Veteran’s situation. In the September 2020 Memorandum Decision, the Court acknowledged the July 2017 VA examiner’s opinion, but determined that the VA examiner did no more to assess the evidence than the private examiner. The Board finds an additional opinion is needed. Updated treatment records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his Meniere’s disease, sleep apnea, and GERD. After securing any necessary releases, request any relevant records identified that are not duplicates of those contained in the claims file. Additionally, obtain any ongoing VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above has been completed, schedule the Veteran for an appropriate examination to address the claim for service connection for Meniere’s disease. The claims file must be reviewed in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed Meniere’s disease is related to military service, to include as due an in-service mortar explosion and the resulting symptoms he experienced. A complete rationale should be provided for all opinions and conclusions expressed. 3. After the above has been completed, forward claims file to an appropriate VA examiner to obtain in opinion with respect to the Veteran’s claim for service connection for sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After review of the claims file, the examiner should respond to the following: (a.) Whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s sleep apnea was caused by weight gain caused by his service-connected PTSD? (b.) If not, it is at least as likely as not (50 percent or higher probability) that the Veteran’s sleep apnea was aggravated (worsened beyond natural progression) by his service-connected PTSD, to include weight gain caused by the PTSD? If the examiner finds that the Veteran’s sleep apnea was aggravated by his service-connected PTSD, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the sleep apnea. A complete rationale should be provided for all opinions and conclusions expressed. 4. After the above has been completed, forward the claims file to an appropriate VA examiner to obtain an addendum opinion regarding the Veteran’s service connection claim for GERD. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After review of the claims file, the examiner should respond to the following: (a.) Whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s GERD was caused by his service-connected PTSD? (b.) If not, is it at least as likely as not that the Veteran’s GERD was aggravated (worsened beyond natural progression) by his service-connected PTSD? If the examiner finds that the Veteran’s GERD was aggravated by his service-connected PTSD, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the GERD. A complete rationale should be provided for all opinions and conclusions expressed. 5. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.