Citation Nr: 21028890 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-32 162 DATE: May 12, 2021 ORDER Entitlement to an initial 70 percent rating for unspecified trauma and stressor-related disorder, claimed as posttraumatic stress disorder (PTSD) [hereinafter psychiatric disability] is granted. Entitlement to an initial rating in excess of 70 percent for a psychiatric disability is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's service-connected psychiatric disability was manifested by symptoms which caused occupational and social impairment with deficiencies in most areas; the symptoms did not cause total occupational and social impairment. 2. The record contains no indication that the Veteran's current sleep apnea was present during active duty, is otherwise causally related to an in-service disease or injury, or is causally related to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 70 percent rating, but no higher, for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9499-9413. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from Apri 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, granted service connection for a psychiatric disability and assigned an initial 30 percent rating, effective August 12, 2015, and denied service connection for sleep apnea. In a March 2016 rating decision, the RO found clear and unmistakable error in the evaluation of the Veteran's psychiatric disability and increased the rating to 50 percent, effective August 12, 2015. This matter was previously before the Board in November 2018. At that time, the Board, inter alia, remanded the claims for further evidentiary development, to include VA examinations. The Board notes that in a March 2020 rating decision, the RO increased the rating for the Veteran's psychiatric disability to 70 percent, effective May 30, 2018. Although a higher rating was granted, the issue remains in appellate status as described above, as neither did the RO assign the maximum schedular rating from the award of service connection nor did the Veteran provide any indication he was satisfied with the award. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a rating decision issued after a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal"). The Board observes that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) Opt-in Election form that was received by VA on May 17, 2018. However, the appeal had already been activated at the Board and was therefore no longer eligible for RAMP. As such, as noted above, the Board remanded the matter in November 2018. To date, the Veteran has not filed an Appeals Modernization Act (AMA) Opt-In. Therefore, the appeal remains in the legacy appeals system. Increased Rating 1. Entitlement to an initial rating in excess of 50 percent for a psychiatric disability prior to May 30, 2018, and in excess of 70 percent thereafter Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran's average impairment of earning capacity resulting from such disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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 will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's psychiatric disability has been rated under the criteria contained in the General Rating Formula for Mental Disorders. Under those criteria, a 50 percent rating is warranted 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-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. 38 C.F.R. § 4.130, Diagnostic Code 9499-9413. A 70 percent rating is assigned when there is objective evidence demonstrating 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 100 percent rating is warranted when there is 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. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held 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 explained that in the context of a 70 percent rating, section 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." Id. at 118. The Federal Circuit indicated that "[a]lthough the 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.'" Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA medical records obtained in connection with the Veteran's claim demonstrated that the Veteran's psychiatric disability symptoms included anxiety, sleep disturbances, and irritability. See 2015-2019 VAMC records. The Veteran was afforded a VA PTSD examination in October 2015. With regard to marital and family relationships, the Veteran reported that he had been married to his wife for 45 years. He reported that he was close with his wife, as well as with his adult son and daughter. The Veteran reported that he had several close friends with whom he had sustained ongoing social interactions. He also reported that he remained close with his younger siblings. The Veteran noted, however, that his combat-related anxiety symptoms had occasionally "been a little hard for them." Occupationally, the Veteran reported that he graduated from high school and attended college for 2 years prior to dropping out and enlisting in the Army. After discharge, he worked for several years as a commercial helicopter pilot and union pipefitter on construction projects. He also reported working as a structural steel executive and business owner. He retired in 2012. He reported that he had occasional interruptions in his work focus, performance, and interactions with others since 1970 due to his pervasive enduring combat-related anxiety symptoms. The Veteran's psychiatric disability symptoms included anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence. On physical examination, the examiner found that the Veteran was alert, attentive, cooperative, and appropriate. His affect was mildly anxious; his mood was mildly dysphoric with tearfulness when discussing his Vietnam experiences and memories. The Veteran's cognitive and intellectual functioning were found to be normal, with good insight and judgment. With regard to effects of the Veteran's psychiatric disability on occupational and social functioning, the examiner concluded that the Veteran's symptoms caused mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In correspondence dated in December 2015, the Veteran's spouse, I.H., indicated that the Veteran experienced anxiety, panic attacks, and sleep disturbances due to his service-connected psychiatric disorder. She also stated that his temper was "short fused" and that she often had to "tiptoe" around him. See December 2015 correspondence from I.H. received July 2016. In another correspondence dated in December 2015, the Veteran indicated that he experienced panic attacks over the past 46 years due to his experiences in Vietnam. See December 2015 correspondence from the Veteran received July 2016. The Veteran was afforded a VA examination in February 2020. With regard to marital and family relationships, the Veteran reported that he remained married to his wife and that he felt connected to her. He reported that he continued to have a good relationship with his children; he reported speaking with his son weekly and with his daughter several times per week. The Veteran reported that he had a relationship with one of his sisters and his brother. He reported that he did not communicate with his other sister due to a falling out several years prior. The Veteran reported that he had friends with whom he went to dinner, occasional movies, and socialized. He reported that he was cautious of others and could be "short with people . . . more with my wife" and often said "something that [he] shouldn't" when he was irritated. Occupationally, the Veteran reported that he retired from his career as a structural steel executive and business owner in 2012. He reported that he did not feel that he was mentally or physically capable to do any work. He reported that a typical day consisted of waking up, attending to hygiene, eating breakfast, and reading the news, as well as completing errands and various appointments. He reported that he used to play golf until he broke his foot 7 months before. The Veteran's psychiatric disability symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. On physical examination, the examiner found that the Veteran was polite and cooperative. Eye contact was normal. Rate, tone, and volume of speech were found to be normal. Insight and judgment appeared intact, with linear thought process and no evidence of psychosis. Psychomotor acceleration was not found. The Veteran denied suicidal and homicidal ideation. With regard to effects of the Veteran's psychiatric disability on occupational and social functioning, the examiner concluded that the Veteran's symptoms caused occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Applying the criteria set forth to the facts in this case, and affording the Veteran the benefit of the doubt, the Board finds that the record supports the assignment of a 70 percent rating for the Veteran's service-connected psychiatric disability. 38 C.F.R. § 4.3, 4.7. The record demonstrates that the Veteran's overall disability picture is consistent with or more nearly approximates the criteria required for a 70 percent rating for the entire appeal period. In this regard, the Veteran's symptoms caused deficiencies in most areas, specifically impaired impulse control, such as having a "short fuse," becoming "short with people," and saying "something that [he] shouldn't" when he was irritated, panic attacks, and the inability to establish and maintain effective relationships, as evidenced by the Veteran's lack of friends or a social network, with the exception of his spouse, children, siblings, and a few friends. The Board has carefully considered the next higher rating of 100 percent. After thorough review of the record, including the statements from the Veteran and his spouse, I.H., the October 2015 and February 2020 VA examinations, and the medical evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a 100 percent schedular rating. In that regard, the record shows that the Veteran's psychiatric disability did not produce total occupational or social impairment. Although he clearly had difficulties with personal relationships, the record reflects ongoing relationships during this period, as described above. Because total social impairment is neither shown nor alleged, a 100 percent rating is not warranted. After thorough review of all evidence of record, the Board finds that the evidence demonstrates that the Veteran's psychological symptoms for the entire appeal period are, at most, indicative of occupational and social impairment with deficiencies in most areas. The Veteran's psychiatric disability was not shown to result in total occupational and social impairment at any time during the appeal period. As noted earlier, the Veteran did not suffer from gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Specifically, as set forth in more detail above, the medical evidence of record demonstrates that the Veteran had normal speech and logical thought process. The medical evidence of record does not contain reports of persistent delusions or hallucinations. The Veteran's behavior was not determined to be grossly inappropriate. Intermittent inability to perform activities of daily living was not found. The Veteran was oriented to person, place, and time. The evidence of record also indicates that the Veteran was not in persistent danger of hurting himself or others. The February 2020 VA examination indicated that the Veteran denied suicidal and homicidal ideation. Additionally, the medical evidence of record indicates that suicidal and homicidal ideations were not present. Additionally, the Veteran reported having a relationship with his wife of over 45 years, children, siblings, and a few friends. These relationships indicate that the Veteran did not suffer from total social impairment. The Veteran also spent the day reading the news, as well as completing errands and various appointments. In addition, he enjoyed playing golf until he broke his foot. In summary, the Board has considered all of the Veteran's psychiatric disability symptoms that affect the level of occupational and social impairment. After so doing, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent, as the Veteran's psychiatric disability does not result in both occupational and social impairment. The Board has considered a total rating based on individual unemployability due to service-connected disability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, absent any indication or allegation that the Veteran is unemployable as a result of his service-connected disabilities, consideration of a TDIU is not warranted. Thus, the record does not reasonably raise the issue of TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Service Connection 2. Entitlement to service connection for sleep apnea is denied. 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, 5107; 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). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his currently-diagnosed sleep apnea had its inception during active service, as evidenced by the fact that he snored while on active duty. The Veteran's STRs (service treatment records) are negative for findings of sleep apnea, complaints of sleep apnea symptoms, or other sleep-related symptomatology. An October 2015 correspondence noted that a recent sleep study indicated severe sleep apnea. See October 2015 correspondence received July 2016. In support of his claim, the Veteran submitted statements from his spouse, I.H., and a fellow servicemember, B.N., to the effect that the Veteran snored during active duty and after he separated from service. See December 2015 statements from I.H. and B.N. received July 2016. The Veteran was afforded a VA examination in February 2020. The examiner noted a 2015 diagnosis of sleep apnea. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's sleep apnea. The examiner opined in pertinent part, Etiology of sleep apnea is as follows[:] Current mainstream medical literature indicates that obstructive sleep apnea occurs when the airway becomes partially or fully blocked. Well-defined risk factors for OSA [obstructive sleep apnea] include older age, male gender, obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Potential risk factors include smoking, nasal congestion, and family history. In a population-based study of over 1000 adults who underwent polysomnography, moderate to severe OSA (AHI = 15) was present in 11 percent of men who were normal weight, 21 percent of those who were overweight (BMI 25 to 30 kg/m2), and 63 percent of those who were obese (BMI > 30 kg/m2). Specifically this veteran[']s risk factors include older age, male gender, BMI 29.7 (at the time of his sleep study), nasal congestion, elongated uvula, Friedman IV tongue, and elongated palate. The latter 3 consist of upper airway soft tissue abnormalities. Current mainstream medical literature does not indicate that snoring is specific or diagnostic for only those with sleep apnea because there are many people who snore that do not have sleep apnea. Thus, snoring is not a 100% reliable indicator of/for sleep apnea. As a result, a sleep study is needed to confirm the diagnosis. About 90 million Americans suffer from snoring; as many as half of those may have the sleep disorder Obstructive Sleep Apnea (OSA). While OSA almost always causes loud and regular snoring, just because you snore doesn't mean that you have OSA. After a review of the evidence, the Board finds that service connection is not warranted for sleep apnea. With regard to the first element of a service connection claim, the Board finds that the Veteran has a current diagnosis of sleep apnea. The October 2015 correspondence, as well as the February 2020 VA examination, noted a diagnosis of sleep apnea. In addressing the second element, although the record reflects that sleep apnea was not diagnosed during active duty, the evidence shows that the Veteran has competently and credibly reported that he experienced snoring while on active duty. The Veteran is competent to provide such assertions, as his experiences during the military are within the realm of first-hand knowledge. He is deemed credible because he has remained consistent in his assertions. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With respect to the third element, the nexus requirement, the Board finds that the probative evidence is against a finding that the Veteran's sleep apnea is causally related to active service, including reported snoring. The Board assigns great probative weight to the February 2020 VA examination, as the examiner reviewed the Veteran's claims file in its entirety, including the Veteran's reported snoring in service. After examining the Veteran and considering the record, the examiner concluded that the Veteran's sleep apnea was not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran's sleep apnea was not causally related to service, explaining that the nature of the current pathology was consistent with older age, male gender, increased BMI, nasal congestion, and upper airway soft tissue abnormalities and not an in-service injury or disease. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the Veteran's statements, and those of his spouse and fellow servicemember, indicating that his sleep apnea was caused by active duty. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau, 492 F.3d 1372, 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the February 2020 VA examiner, given her clinical expertise and the rationale she provided. Based on the foregoing, as the probative evidence is against the Veteran's claim of service connection for sleep apnea, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran's claim for sleep apnea is denied. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.