Citation Nr: 21030368 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-26 691 DATE: May 18, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected post-traumatic stress disorder (PTSD) for the period on appeal prior to August 10, 2018, is denied. Entitlement to a 70 percent disability rating for the Veteran's service-connected PTSD for the period beginning August 10, 2018 is granted. Entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected sleep apnea is denied. FINDINGS OF FACT 1. During the period on appeal prior to August 10, 2018, the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. From August 10, 2018, the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas. 3. The Veteran's sleep apnea has been characterized by requiring the use of breathing assistance device such as continuous airway pressure (CPAP) machine. It has not been characterized by chronic respiratory failure with carbon dioxide retention or cor pulmonale, nor does it require a tracheostomy. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected PTSD for the period on appeal prior to August 10, 2018, have not 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. 2. The criteria for establishing entitlement to a 70 percent disability rating for the Veteran's service-connected PTSD for the period beginning August 10, 2018 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. 3. The criteria for establishing entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1987 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). When the PTSD and sleep apnea issues were last before the Board in November 2020, they were remanded for the RO to provide the Veteran with a Supplemental Statement of the Case (SSOC) regarding his disabilities. The Veteran was provided with the SSOC regarding his disabilities. As such, the Board finds that the AOJ substantially complied with the directives in the aforementioned Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. PTSDLegal Criteria PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, a 50 percent disability 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted 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); and inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Prior to August 10, 2018 Critically, the Board observes that the above-noted evaluation criteria for a 50 percent disability rating indicates an array of symptoms, which are likely sufficient to cause reduced reliability and productivity in both an occupational and social setting. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon work and social function to such an extent that they result in reduced reliability and productivity. The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, 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: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has carefully reviewed the Veteran's VA treatment reports, November 2015 VA PTSD examination, and the Veteran's competent lay statements. In sum, these records show the Veteran has reported consistent psychiatric manifestations throughout the period of this appeal. The above-noted evidence shows the Veteran has experienced several significant symptoms and impairments, which include: irritable behavior, anger outbursts, anxiety, depressed mood, intrusive thoughts, distressing dreams, chronic sleep impairment, hypervigilance, panic attacks that occur weekly or less often, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances In this case, the evidence plainly establishes the Veteran's psychiatric manifestations have resulted in reduced reliability and productivity in both occupational and social settings. The Veteran's psychiatric manifestations have resulted in impairments that clearly diminish his consistency and dependability in these settings more than just occasionally. As such, the Board finds that even affording the Veteran the benefit of reasonable doubt, his disability picture most nearly approximates the criteria necessary for a 50 percent disability rating throughout this period of the appeal. There is no evidence of delusions, hallucinations, homicidal ideations, suicidal ideations, or grossly inappropriate behavior. There is also no evidence of neglect of personal appearance or hygiene; or illogical, obscure, or irrelevant speech. He has been able to perform activities of daily living and is oriented to person, time, and place. Additionally, the evidence does not show the Veteran experiences memory impairments of such severity that he forgets names of close relatives, his own occupation, or his own name. The evidence simply does not show that the social and occupational impairment from his PTSD has more nearly approximated deficiencies in most areas required for a 70 percent rating or the total impairment required for a 100 percent rating at any time during this period of the claim. For these reasons, the Board finds that the rating of 50 percent, and no more, is warranted for the period prior to August 10, 2018. Consideration has been given to assigning a staged rating; however, as explained above, the evidence does not suggest that the severity has fluctuated during this period of this appeal, so a staged rating is not appropriate for this claim. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Period Beginning August 10, 2018 Critically, the Board observes that the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411. The symptoms considered in determining the level of impairment under the Rating Schedule for psychiatric disabilities are not restricted to the symptoms provided in the diagnostic code. Instead, 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: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Mauerhan 16 Vet. App. 436. The Board has thoroughly reviewed the Veteran's claims file, including the Veteran's lay statements; the September 2019 VA PTSD examination; and the VA treatment records. In sum, these records show that the Veteran has experienced consistent psychiatric manifestations throughout this period on appeal. These include: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; flattened affect; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; suicidal ideation; impaired impulse control; neglect of personal appearance or hygiene; hyper vigilance; irritable behavior; problems with concentration; and an exaggerated startle response. The Board acknowledges that the Veteran had suicidal thoughts. As the United States Court of Appeals for Veterans Claims (CAVC) has affirmed, suicidal ideation does not require suicidal intent, a plan, or prepatory behavior. Bankhead, v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board notes, suicidal ideation is a serious symptom. In Bankhead, the Court indicated that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. Further, the Court held that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas. Id. Given the Veteran's suicidal ideation was first noted in August 10, 2018, and has persisted throughout the period of the claim, the Board finds that a 70 percent rating is warranted for this period. In light of the Court's decision in Bankhead, and after having resolved all reasonable doubt in favor of the Veteran, the Board has determined that a 70 percent rating is warranted for the entire period on appeal beginning August 10, 2018. In this regard, the Board finds that due to the symptoms summarized above, including the Veteran's reported suicidal thoughts, his service-connected PTSD has most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood during this period. In sum, the records show the Veteran received consistent mental health care throughout the period on appeal. Additionally, the evidence shows the Veteran has experienced several significant symptoms and impairments, which include: diminished memory, impaired impulse control, anxiety, significant relationship problems, chronic dysfunctional sleep, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, chronic mood impairments, and suicidal ideation. Throughout this period, the weight of the evidence supports a finding that the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, the Board finds that the signs and symptoms associated with his psychiatric disabilities do not more nearly approximate total social and occupational impairment during this period. In this regard, for example, there is no evidence of delusions, hallucinations, homicidal ideations, or grossly inappropriate behavior. He has been able to perform activities of daily living and was competent to handle his own finances. Additionally, the evidence does not show the Veteran experienced memory impairments of such severity that he forgot names of close relatives, his own occupation, or his own name. In short, despite the Veteran's symptoms, he had not exhibited the type of emotional and cognitive impairment reserved for a total rating. 38 C.F.R. § 4.130, DC 9411. Based on the foregoing, the totality of the evidence shows that the disability picture for the Veteran's PTSD warranted a 70 percent rating for this period on appeal. However, the preponderance of the evidence is against the assignment of a higher, 100 percent, rating. 38 C.F.R. § 3.102. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Sleep Apnea The Veteran's sleep apnea is currently rated under Diagnostic Code 6847. In pertinent part a 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. 38 C.F.R. § 4.97, DC 6847. The maximum 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Id. Analysis The Veteran claims entitlement to a disability rating in excess of 50 percent for his service-connected sleep apnea. For the reasons outlined below, the preponderance of the evidence is against the Veteran's claim. The Board has carefully reviewed the evidence of the record including: the Veteran's VA Treatment records; the Veteran's July 2012, January 2013, May 2015, and September 2019 VA Sleep Apnea examinations; and the Veteran's competent lay statements. In sum, these records show the Veteran has consistently experienced symptoms of persistent daytime hypersomnolence and use of a CPAP machine to control symptoms. There is no evidence that the Veteran experienced chronic respiratory failure, cor pulmonate, or the requirement of a tracheostomy at any point during the appeal. Based on this evidence, the assigned 50 percent rating for the Veteran's sleep apnea fully contemplates his symptoms. The Veteran's sleep apnea has not been characterized by chronic respiratory failure, cor pulmonale, or the requirement of a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. His symptoms do not approximate a disability rating in excess of 50 percent and the claim must be denied. The Board finds that the abovementioned VA examination reports, describing the Veteran's sleep apnea symptoms, to be the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his sleep apnea symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The preponderance of the evidence is against a finding that the Veteran's sleep apnea warrants a rating in excess of 50 during the entire appeal period and therefore, the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.