Citation Nr: 21031175 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-07 469 DATE: May 20, 2021 ORDER Entitlement to an initial 70 percent evaluation, at least, for service-connected posttraumatic stress disorder (PTSD) from August 2, 2015, to October 24, 2016, is granted, subject to the law and regulations governing payment of monetary benefits. Entitlement to an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea is dismissed. REMANDED Entitlement to an initial compensable evaluation for service-connected non-specific headaches (hereinafter, service-connected headache disability) is remanded. Entitlement to an initial evaluation in excess of 70 percent for service-connected PTSD prior to September 20, 2018, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the most probative evidence reflects that his service-connected PTSD (diagnosed and service connected as insomnia disorder during the period for consideration) was manifested by severe symptomatology, resulting in at least occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, from August 2, 2015, to October 24, 2016. 2. In testimony at a January 2021 Board of Veteran s Appeals (Board) hearing, prior to promulgation of a decision, the Veteran withdrew his appeal with regard to the issue of entitlement to an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea. CONCLUSIONS OF LAW 1. From August 2, 2015, to October 24, 2016, the criteria for a 70 percent initial evaluation, at least, for service-connected PTSD (diagnosed and service connected as insomnia disorder during the period for consideration) were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea have been met. 38 U.S.C. § 7105 (b) (2), (d) (5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 2012 to August 2015, to include service in Southwest Asia Theater of operations during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Board observes that this rating decision represents a readjudication of the same issues adjudicated in an April 2016 rating decision due to new and material evidence, namely the reports of the November 2016 and January 2017 VA examinations, obtained by VA within the appeal period of such. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran expressed timely disagreement with the assigned initial evaluations for these service-connected disabilities in the January 2017 rating decision, and the present appeal ensued. Accordingly, the appeal period for consideration regarding all issues, to include entitlement to a TDIU as part and parcel of the appeals seeking increased initial evaluations, is from August 2, 2015, to the present. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the file. Preliminary matters In light of some procedural anomalies during the pendency of the Veteran's appeal, the Board concludes that a brief recitation of pertinent facts would be helpful to clarify the Veteran's appealed issues. In December 2015, within the Veteran's initial post-service year, he filed a claim to establish service connection for several disabilities, to include depression and PTSD. The Veteran was provided a psychiatric examination in connection with this claim, and the VA examiner diagnosed insomnia disorder, but ruled out all other acquired psychiatric disabilities. Based on this evidence, the AOJ bifurcated the Veteran's claims, establishing service connection for insomnia disorder (evaluated 10 percent disabling) and denying the claims to establish service connection for PTSD and depression, in the April 2016 rating decision. The Veteran filed a claim for an increased evaluation for service-connected insomnia disorder. As noted above, the AOJ provided the Veteran a VA examination in connection with this claim within the appeal period of the April 2016 rating decision, which overcame the finality of such regarding these downstream elements. In the January 2017 rating decision, the AOJ increased the initial evaluation assigned for the Veteran's service-connected insomnia disorder from 10 percent to 70 percent, effective from the Veteran's October 2016 claim. The Veteran subsequently initiated an appeal of this issue, among others, was later perfected to the Board. After the Veteran's appeal was certified and transferred to the Board in March 2018, the Veteran filed additional claims seeking VA benefits, to include entitlement to a TDIU, petitions to reopen his previously-denied claims to establish service connection for depression and PTSD, and claims seeking increased evaluations for his service-connected headache disability and obstructive sleep apnea the latter two already being in appellate status and under the Board's jurisdiction. The Veteran was provided a VA examination in connection with these claims in January 2019, and the VA examiner opined that the Veteran's insomnia disorder with dysthymia had progressed in severity to the point where the Veteran's symptoms met the criteria of a diagnosis of PTSD. Based on the above findings, in an August 2019 rating decision, the AOJ recharacterized the Veteran's service-connected insomnia disorder to PTSD, and the assigned initial evaluation was increased to 100 percent, effective from September 20, 2018. The Board observes that the AOJ stated that the effective date was assigned based on an "Intent to File" submitted to VA on that date; however, the Veteran's VA file is devoid of any submission from the Veteran on or around that date. While this allowance abrogated the Veteran's appeal from September 20, 2018, to the present, the staged initial evaluation for this recharacterized service-connected disability remained in appellate status. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In passing, the Board notes that the AOJ found the Veteran's TDIU claim to be moot based on the assignment of a 100 percent schedular evaluation for service-connected PTSD. In light of the above, the Veteran's appealed issues have been characterized as stated on the title page to reflect the AOJ's actions and better reflect the benefits sought by the Veteran. As will be further explained below, the Veteran's appeal seeking an increased initial evaluation for service-connected PTSD is being bifurcated based on the Board's disposition regarding this issue. 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected PTSD prior to October 25, 2016 The Veteran and his representative have asserted that his PTSD warrants an increased initial evaluation, which is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 10 percent evaluation is assigned under this code for 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 continuous medication. A 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the 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, chronic sleep impairment, and mild memory loss. A 50 percent evaluation is warranted when there is 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. 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. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran's appeal was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis With the above criteria in mind and for the reasons stated below, the Board concludes that the Veteran's psychiatric symptoms and resulting functional impairment most closely approximate the criteria for a 70 percent initial evaluation, at least, from August 2, 2015, to October 24, 2016. The evidence outlining the frequency, severity, and duration, of the Veteran's psychiatric symptoms from August 2, 2015, to October 24, 2016, is rather sparse. The Veteran initially sought VA mental health treatment in February 2016, reporting severe sleep issues, emotional numbing, feeling distant from others, and a dislike of loud noises. While he denied experiencing depressed mood, he endorsed extreme irritability, suspiciousness, and hostility, when confronted by police officers and/or authority figures. Although he had been married for more than three years at that time, he has been physically separated from his wife and had not seen her in at least two years. He was attending theater classes and had begun a promising career in the entertainment business, as verified by his VA therapist. The VA psychologist ruled out a diagnosis of PTSD because the Veteran denied all PTSD symptoms except hypervigilance, but diagnosed unspecified and stressor related disorder. The Veteran presented for further treatment in March 2016, reporting that his sleep difficulties, diagnosed as insomnia at this time, had caused increased psychiatric symptoms, to include depression, anxiety, and irritability. The Veteran's increased symptoms were noted, and the psychologist prescribed sleep aid medication. The Veteran was provided a VA psychiatric examination later in March 2016, and the report of such reflects the above historical facts and reported symptoms. Curiously, the Veteran was noted to have only one psychiatric symptom, chronic sleep impairment, which was attributed to a diagnosis of insomnia disorder. As outlined in the Introduction, the AOJ initially established service connection for insomnia disorder in the April 2016 rating decision and rated this disability by analogy under the General Rating Formula for Mental Disorders; however, the only symptom considered in this rating was chronic sleep impairment. Despite this, the tenuous nature of the Veteran's service-connected psychiatric disability was subsequently clarified, and thus, the Board may evaluate the Veteran's service-connected disability in view all of his symptoms, notwithstanding to what diagnosed disability they were attributed to at that time. After doing so, the Board concludes that the Veteran's psychiatric symptoms during this time period were substantial in severity, frequency, and duration, and productive of severe social and occupational functioning. The Board notes that the Veteran has not endorsed all or nearly all of the symptoms typically associated with a 70 percent evaluation. There was no evidence showing, for example, spatial disorientation or forgetting his own name during the time period for consideration. Nevertheless, in assigning an evaluation, the Board is not required "to find the presence of all, most, or even some, of the enumerated symptoms." See Mauerhan, supra. On the other hand, the PTSD symptoms and resulting functional impairment reported by the Veteran in the 2016 VA treatment records, at the March 2016 VA examination, and at the August 2018 Board hearing all appear consistent with the other evidence of record. If the Board finds that the positive and negative evidence relating to a Veteran's claim are in "approximate balance," then the placement of the risk of nonpersuasion on the VA dictates a finding in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361 (2001). See also, Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Here there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is in a state of "equipoise." As such, affording the Veteran the benefit of the doubt, the Board concludes that the most probative evidence concerning the severity and functional impairment resulting from the Veteran's psychiatric symptoms most nearly approximates the criteria for a 70 percent initial evaluation, at least, for service-connected PTSD from August 2, 2015, to October 24, 2016. To this extent, the Veteran's appeal is granted; however, as will be explained below, further development is necessary prior to the Board's readjudication of further entitlement. 2. Entitlement to an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea Pursuant to 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (c) (as amended by 68 Fed. Reg. 13,235 (April 18, 2003)). In this case, prior to the promulgation of a decision, the Veteran testified at the January 2021 hearing that he wished to withdraw his appeal with regard to the issue of entitlement to an initial evaluation in excess of 50 percent for service-connected obstructive sleep apnea. The Veteran's withdrawal was reduced to writing when the hearing testimony was transcribed, pursuant to 38 C.F.R. § 20.204. Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). As such, the criteria have been met for withdrawal of the Veteran's appeal as to this issue. Accordingly, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal with regard to this issue, and it is dismissed. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for a service-connected headache disability is remanded. The Veteran was most recently provided a VA examination to discern the frequency, severity, and manifestations of his service-connected headaches disability in March 2018 more than three years ago. At the January 2021, the Veteran testified that the symptoms associated with this service-connected disability had worsened since the March 2018 examination, resulting in increased functional impairment. As such, the Board concludes that a remand is necessary in order to provide the Veteran with a VA headaches examination to determine the contemporaneous frequency, severity, and duration, of the symptoms attributable to this service-connected disability. 2. Entitlement to an initial evaluation in excess of 70 percent for service-connected PTSD prior to September 20, 2018, is remanded. 3. Entitlement to a TDIU is remanded. A criterium common to both of these appealed issues is whether the Veteran's service-connected PTSD resulted in total occupational impairment, as he asserted in a January 2019 submission and at the January 2021 Board hearing. To this point, the Veteran testified at the January 2021 Board hearing and reported to the Social Security Administration (SSA) in connection with claims filed with that Federal Agency in April 2016 and February 2017 that, aside from being a security guard from August 2015 to September 2015, he had not been employed since his August 2015 service separation. However, closer review of the Veteran's file reveals that these assertions are inconsistent with other evidence. To the above point, since the Veteran's separation from active duty, he has actively participated in VA's Vocational Rehabilitation and Education (VR&E) program, utilizing these benefits to pursue college classes in pursuit of a career in the entertainment industry. It appears that the Veteran's efforts have been fruitful, as he reported to a VA psychologist in March 2016 that he had secured several acting roles in commercial and a televisions series. The VA psychologist confirmed the Veteran's statements in this regard, noting that an Internet search yielded the Veteran's page on the Internet Movie Database that detailed credits as an actor, director, writer, and producer, in many professional projects throughout different mediums. While the above clearly reflects that the Veteran has been employed since his August 2015 service separation, the record for review is devoid of any evidence concerning whether such was "marginal," in the context of the language of 38 C.F.R. § 4.16. In other words, it is unclear whether the Veteran's employment provided income above or below the poverty threshold as per the standards of the U.S. Department of Commerce, Bureau of the Census, at any time during the appeal period. In light of above, the Board concludes that further development is necessary to determine the Veteran's employment status from September 2015 to the present, whether such represents a substantially gainful occupation, and if not, whether such was due to his service-connected disabilities, individually or in concert. The Veteran is encouraged to cooperate with the AOJ's efforts in furtherance of substantiating these critical points. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment pertaining to the Veteran, with his assistance regarding the latter. 2. The AOJ must contact the Veteran and ask that he verify his personal employment and resulting income since August 2, 2015, to include supporting documentation in his possession, to include W-2 Forms, pay stubs, and reports of income to the Screen Actors Guild American Federation of Television and Radio Artists (SAG AFTRA). *The Veteran is encouraged to comply with the AOJ's efforts to determine his income from August 2015 to the present, as his failure to do so may result in VA's inability to grant the benefits that he is seeking. 3. After the completion of above, the AOJ must determine whether the Veteran's income since August 2015 is above or below the poverty threshold as per the standards of the U.S. Department of Commerce, Bureau of the Census. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the frequency, severity, and duration, of the symptoms associated with his service-connected headache disability. The relevant documents in the record should be made available to the examiner, including a copy of this remand. The examiner should indicate on the examination report that he/she has reviewed the documents. A detailed history of relevant symptoms should be obtained from the Veteran. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms and prostrating attacks. To the extent possible, the examiner should identify any symptoms, prostrating attacks, and functional impairments due to migraine headaches alone and discuss the effect of such on any occupational functioning and activities of daily living. In determining whether the Veteran's headaches are manifested by "prostrating attacks," Dorland's Medical Dictionary defines such as "extreme exhaustion or powerlessness." Felder v. McDonald, 2016 WL 1295022 (April 1, 2016). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the Veteran's appeal for a TDIU, to specifically include collecting and verifying information concerning his complete educational and occupational history, and scheduling him for additional VA examination(s) necessary for adjudicating the issue. 6. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of any additional evidence added to the record. If the benefit remains denied, the Veteran and his representative should be furnished with a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.