Citation Nr: 21029309 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-47 402 DATE: May 13, 2021 ORDER Service connection for sleep apnea is granted. An increased initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted from April 4, 2014 to May 23, 2016, and for the period since August 1, 2016. FINDINGS OF FACT 1. The Veteran's sleep apnea was caused by her service-connected PTSD. 2. From April 4, 2014 to May 23, 2016, and for the period since August 1, 2016, the Veteran's PTSD is productive of occupational and social impairment with deficiencies in the areas of work, family relations, and mood. They are not productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. From April 4, 2014 to May 23, 2016, and for the period since August 1, 2016, the criteria for an increased initial rating of 70 percent, but no higher, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to October 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2016 and January 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 rating decision granted service connection for PTSD, with a 30 percent rating effective from April 4, 2014 to May 23, 2016, a 100 percent rating effective from May 23, 2016 to August 1, 2016, and a 30 percent rating thereafter. However, as that 100 percent rating did not represent a total grant of the benefits sought on appeal, the claim of entitlement to an increased rating for PTSD remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In July 2019, the Board remanded the issue of service connection for sleep apnea for further evidentiary development. Finally, the Board notes that the Veteran contends that her service-connected PTSD affects her ability to work due to fatigue. However, the Board does not find that this case raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Here, the evidence shows that the Veteran is employed full time as a vocational rehabilitation counselor. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. Service Connection The Veteran essentially contends that service connection for sleep apnea is warranted because she developed symptoms associated with sleep apnea during active duty. She asserts that she "began to have problems with sleeping in the summer of 1988...females in my barrack would tell me that I snore." See Sleep Apnea Disability Benefits Questionnaire received on May 2016. She alternatively contends that service connection for sleep apnea is warranted as a result of her service-connected PTSD, including aggravation due to medication prescribed to treat PTSD. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). Service treatment records do not document complaints of sleep disturbances or treatment for sleep apnea. Post-service treatment records reflect that the Veteran has a current diagnosis of obstructive sleep apnea, diagnosed in 2014 following the second of two sleep studies. See May 2014 Pulmonary Note ("Home sleep study reviewed. RD/AHI elevated moderate sleep apnea"). Pursuant to the July 2019 remand, the Veteran was afforded a VA sleep apnea examination in January 2020. The examiner diagnosed the Veteran with obstructive sleep apnea for which continuous medication and a continuous positive airway pressure (CPAP) machine was required for treatment. The VA examiner opined that the Veteran's sleep apnea was less likely than not related to service as there were no medical records showing diagnosis or treatment for sleep apnea or a related respiratory or sleep disorder in service. The VA examiner also opined that the Veteran's sleep apnea was less likely than not aggravated by service-connected PTSD and reasoned that medications prescribed for PTSD treatment have not been linked to sleep apnea. She further reasoned that sleep apnea tends to be multifactorial in nature, including genetic factors, environmental factors, drug abuse, lifestyles, body habitus, sinus conditions, upper respiratory conditions, neurological deficit and/or idiopathic, but did not discuss how this applied to the Veteran. The Board finds that the examiner's negative direct nexus opinion relies solely on the lack of service treatment records documenting complaints of symptoms and only superficially references the Veteran's lay assertions. The absence of treatment records should not be the primary basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the veteran's current disability and his military service (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)). The Board also finds that the examiner's negative secondary service connection opinion was conclusory and provided no supporting rationale. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). For these reasons, the Board affords the VA opinion no probative weight. In December 2020, the Veteran's representative submitted a private physician opinion. The private physician reviewed the Veteran's medical records and opined that her sleep apnea was more likely than not caused by her service-connected PTSD and long-term continued use of tramadol for her service-connected musculoskeletal and neurologic disabilities. The physician noted that although sleep apnea and PTSD have been studied for many years as two different independent conditions, there is a growing body of scientific evidence over the last several years that supports a bidirectional relationship between PTSD and sleep disturbances including sleep apnea, and referenced multiple articles and studies in medical literature supportive of these findings. The physician noted that beyond the PTSD criterion symptoms of insomnia and nightmares, 40 to 98 percent of veterans with PTSD also have co-occurring sleep disturbance such as sleep apnea, periodic leg movement disorder, sleep terrors, and nocturnal anxiety attacks. The physician also referenced that a number of factors may play a role in the association between psychiatric disorders with sleeping disorders, with or without sleep apnea. She stated that oxidative and nitrosative stress, inflammation, and neurotransmitter imbalances play a role in all psychiatric disorders and that this underlying molecular dysregulation manifests as psychiatric symptoms but also alters the neurobiological and endocrine function of these individuals leading to the association of psychiatric disorders with obesity, diabetes, and cardiovascular disease. The physician also noted that the Veteran's continued use of tramadol (an opiate analgesic) for her service-connected musculoskeletal conditions changes the way the brain and nervous system respond to pain and that taking the tramadol, as well as anti-depressant and anti-anxiety medications, at higher doses or for long periods can lead to dependence and is related to the onset or worsening of sleep apnea. The physician concluded that based on the Veteran's medical history and the medical literature, it is more likely than not that the Veteran's sleep disorder is a consequence of her service-connected PTSD as scientific evidence relates pathophysiological mechanisms responsible for sleep apnea development in individuals with PTSD. After review of the record, the Board finds that service connection for sleep apnea is warranted. Here, the Board finds the Veteran's reports of sleep apnea symptoms during service to be both competent and credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In addressing the competent nexus opinion evidence of record, the Board finds that the positive opinion of the December 2020 private physician, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. Her conclusion is supported by the medical evidence of record, which includes post-service treatment records documenting treatment for obstructive sleep apnea, service-connected PTSD, and pain as a result of multiple service-connected musculoskeletal disabilities, and findings that the accepted medical literature indicates that there is a bidirectional relationship between PTSD and sleep disturbances including sleep apnea. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for sleep apnea is granted. 38 U.S.C. §§ 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). By way of history, the Veteran filed a claim for service connection for PTSD on April 4, 2014. In a January 2019 rating decision, the RO granted service connection for PTSD and assigned an initial 30 percent rating effective from April 4, 2014 to May 23, 2016, and from August 1, 2016, under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran appealed her initial rating. The relevant rating criteria are set forth below. Under the general rating formula for mental disorders, 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 functioning 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). 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- 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 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. A 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 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the relevant evidence of record, a letter from the Veteran's treating VA psychologist dated in March 2015 notes that the Veteran is hypersensitive around others, avoidant of others, harbors excessive fear, considers her world as dangerous, and has a dysthymic mood and irritability. The treating psychologist noted that although the Veteran's symptoms are enough to impair her social relationships and quality of life, she was able to maintain gainful employment through the support of her family. The Veteran was afforded a VA PTSD examination in November 2018. At that time, the Veteran reported that she maintains contact with her mother, sisters, and daughter but does not see friends. She stated that although she works full-time as a vocational rehabilitation special, she says most of the individuals on her caseload are men and being alone in a room with a man makes her feel uneasy. The VA examiner also noted that the Veteran endorsed a history of depressed mood, fluctuating appetite and weight, a history of suicidal ideation, and sleep disruption due to distressing dreams about her military sexual trauma. The Veteran also endorsed trouble sleeping since experiencing a home break-in that results in daytime fatigue. She endorsed irritability, anxiety, panic attacks, and uneasiness with crowds being out at night. The Veteran also endorsed checking behaviors when asked about compulsions. When asked about hallucinations, the Veteran reported she feels her father's presence since his death. She also endorsed memory problems, including remembering to pay bills. The VA examiner noted that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The VA examiner opined that the Veteran's PTSD resulted in occupational and social impairment due to 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. A private psychosocial assessment dated in September 2018, private treatment records from September 2018 to October 2019, and a private January 2020 psychological evaluation document, anxiety, avoidance, excessive worrying, difficulty with concentration, recurrent distressing dreams, flashbacks, memory issues, audio and visual hallucinations of the in-service incident and "deep seated sexual issues." The clinicians also noted complex parasomnias, ruminations, and delusions. The January 2020 psychologist noted that the Veteran "may be feigning improvement at times." The January 2020 notice of disagreement from the Veteran's representative documented the Veteran's history of worsening audio and visual hallucinations, frequent nightmares and flashbacks of her military sexual trauma, and symptoms of impaired concentration and attention span. In a January 2020 affidavit, the Veteran reported that she argues with her co-workers, has difficulty getting along with supervisors, and cries easily. She also endorsed nightmares, hallucinations, binge eating, anxiety and depression. She avoids movies, concerts and other public functions due to fears of the public and switched her work shift due to fear of the night. She reported that she maintains no romantic relationships or social relationships outside of family. She also endorsed memory loss with basic things, like knowing how to get home. VA treatment records and private treatment records throughout the pendency of the appeal reflect similar symptoms throughout the pendency of the appeal. The Board finds that throughout the appellate period, the Veteran's PTSD has most closely approximated the criteria for a 70 percent rating. Throughout this period, the Veteran has demonstrated symptoms of self-isolation, near-continuous depression and anxiety, obsessional rituals, panic attacks, memory impairment, irritability, difficulty in adapting to stressful circumstances (including a worklike setting), and an inability to establish and maintain effective relationships, as reflected in VA treatment records, private treatment records, lay statements, and at various psychological evaluations. Given the Veteran's reports of near-continuous depression, anxiety, and panic, self-isolation, suicidal ideation, anger outbursts and irritability, paranoia and reoccurring nightmares, the Board finds that her symptoms throughout the appellate period cause occupational and social impairment in the areas of work, family relations, and mood. Although the November 2019 VA examiner did not find that the Veteran's symptoms cause occupational and social impairment with deficiencies in most areas, the examiner did note some social and occupational impairment and recurrent interpersonal problems due to PTSD symptoms. In addressing whether a rating higher than 70 percent is warranted, the Board concludes that the evidence of record does not support a rating of 100 percent, the highest disability evaluation available at any time during appellate period. Neither the November 2018 VA examiner nor private psychologists of record noted that the Veteran's symptoms caused total occupational and social impairment. Indeed, the Veteran has remained gainfully employed throughout the period on appeal. Moreover, the record does not reflect that the Veteran demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. Persistent delusions or hallucinations have not been shown to the extent contemplated by the rating criteria, nor has that Veteran been shown to have gross impairment in thought processes or communication, inappropriate behavior, an inability to perform activities of daily living, or any of the other markers of total occupational and social impairment due to her service-connected PTSD. As noted above, although the Veteran experiences impairment in her relationships with friends, and she often self-isolates, she reported that she maintained positive relationships with her family and maintained full-time employment. In sum, throughout the appellate period, the Board finds that a rating of 70 percent, but not higher, for the Veteran's PTSD is warranted. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. The Board has considered the applicability of the benefit of the doubt doctrine in reaching these conclusions. However, to the extent that the Veteran's claim for an increased initial rating for PTSD is being denied, the Board finds that the preponderance of the evidence is against a rating higher than that assigned herein. See 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.