Citation Nr: 21032027 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-29 365 DATE: May 25, 2021 ORDER Entitlement to a rating greater than 30 percent prior to March 6, 2015, and greater than 70 percent thereafter, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating greater than 50 percent for obstructive sleep apnea with bronchial asthma and dyspnea is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) between July 30, 2009 and September 22, 2010 is granted, subject to the law and regulations governing the payment of monetary benefits; entitlement to a TDIU for the period after September 22, 2010, is moot. FINDINGS OF FACT 1. Prior to March 6, 2015, the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since March 6, 2015, the Veteran's PTSD resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. The Veteran's obstructive sleep apnea was not manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requirement of a tracheostomy. 4. From July 30, 2009 to September 22, 2010, the Veteran's service-connected disabilities precluded him from securing substantially gainful employment. 5. Effective September 22, 2010, the Veteran's coronary artery disease is evaluated as 100 percent disabling; TDIU is moot because the Veteran was found to be unemployable due to multiple service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 30 percent prior to March 6, 2015, and greater than 70 percent thereafter, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a rating greater than 50 percent for obstructive sleep apnea with bronchial asthma and dyspnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6847. 3. The criteria for entitlement to TDIU between July 30, 2009 and September 22, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 4. Entitlement to TDIU for the period from September 22, 2010, is moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to June 2005. He died in December 2016; the appellant is his surviving spouse. The claim was most recently before the Board in November 2019 when it was remanded for further development. Increased Rating Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating greater than 30 percent prior to March 6, 2015, and greater than 70 percent thereafter, for PTSD The issue before the Board is whether the Veteran was entitled to increased disability ratings for his PTSD. The appellant contends that increased ratings were warranted as the Veteran experienced severe symptoms of PTSD prior to his death. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment have most nearly approximated the rating criteria indicative of a 30 percent rating prior to March 6, 2015, and a 70 percent rating since that date. Therefore, increased evaluations are not warranted. When evaluating a mental disorder, VA 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 occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran's PTSD is currently evaluated under DC 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 30 percent disability rating requires evidence of the following: 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, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating requires evidence of the following: 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 disability rating requires: 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In this case, the relevant medical evidence of record includes VA treatment records, as well as lay statements from the Veteran and appellant. The claim has been on appeal since the one-year period prior to the June 30, 2010, filing of the claim. Turning to the evidence, the Veteran was given a VA examination in October 2010 to assess the severity of his PTSD where he reported having difficulty sleeping and irritability resulting in anger outbursts that he believes worsened in the last year. The Veteran avoided crowds. He had some intrusive thoughts and anxiety. The Veteran reported looking for work and starting college courses. He further reported that he felt anxious during the day even around his own family. He reported socializing with two friends. The examiner found the Veteran's PTSD to be moderate in severity. Upon examination, the Veteran's affect was appropriate, and his mood was within normal limits. The Veteran's speech was relevant and coherent, and there was no evidence of psychosis or thought disorder. The examiner further reported that the Veteran appeared capable of maintaining personal hygiene and other basic activities of daily living. His concentration was intact. He was alert and oriented to person, place, time and situation. He was also not in any acute distress. The Veteran's memory and concentration was intact. He had no suicidal or homicidal ideations, and he was found to be able to manage his finances. The examiner opined that Veteran's symptoms were about the same as his June 2008 VA examination and would not interfere with his ability to maintain gainful employment. VA treatment notes from July 2014 state that the Veteran reported having nightmares and dreams up to nine times in a week. He reported sleeping three to four hours and not being able to fall back asleep after waking. The Veteran also reported having anger issues but added that he would try to walk away from confrontation. His provider noted the Veteran's grooming was fair and that he reported no memory or cognitive impairment issues. The Veteran also denied homicidal or suicidal ideation. The provider noted that the Veteran's insight and judgment were intact. The Veteran was given a VA examination in May 2015. The Veteran reported to the examiner that he was separated from wife but lived with her off and on. Otherwise the Veteran was socially isolated and could get along with people. He had irritability problems and anger issues. The Veteran further reported that the medications he took were not effective. The examiner characterized the Veteran's PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted symptoms that included depressed mood, anxiety, sleep impairment, impaired abstract thinking, disturbances of motivation and mood, difficulty adapting to stressful circumstances including work or worklike setting, and an inability to establish and maintain effective relationships. VA treatment notes from September 2015 show that the Veteran complained of depressed mood and isolation. He also reported having combat nightmares about Iraq four to five times per week. He was experiencing insomnia, decreased appetite and energy, hypervigilance, and night sweats. He also avoided "violence on TV and anything like shooting." The Veteran did not endorse hopelessness, suicidal ideas, intent, or plans. VA mental health treatment notes from November 2015 show his mental health provider reported that the Veteran was casually attired with good grooming and hygiene, appeared neat and kempt in appearance. His mood was amiable, and his speech was productive, coherent, normal in rate and volume, spontaneous, and fluent. The Veteran reported to the examiner that he had nightmares and he isolated himself. He had recurrent intrusive thoughts, hypervigilance, exaggerated startle response with loud noise and inability to tolerate crowds. He did not report any psychotic symptoms, intent to hurt himself or others, or any memory or cognitive disturbances. The Veteran's insight and judgement was intact. In a September 2016 VA treatment note, the Veteran reported having nightmares and being unable to sleep. He also reported having anger issues and being unable to be around people. The Veteran endorsed moderate to severe intrusion symptoms, mild to moderate avoidance symptoms, moderate to severe negative alterations in cognitions and mood, and mild to severe arousal symptoms. The Board finds that the criteria for a disability rating greater than 30 percent prior to March 6, 2015 are not met or more closely approximated. Prior to March 2015, the Veteran's psychiatric symptoms have included chronic sleep impairment, anger and irritability. The Veteran was able to generally function satisfactorily, with routine behavior, self-care, and normal conversation. Although the Veteran described having anger and irritability issues, he was able to defuse the situation by walking away. These symptoms are more reflective of a 30 percent rating. The Board acknowledges that the Veteran did endorse difficulty in establishing and maintaining effective work and social relationships, to include his own family, which is contemplated in the criteria for a 50 percent rating. However, the Board must also consider the fact that the presence or absence of any one symptom listed in the criteria is not necessarily dispositive of any particular disability level. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Furthermore, all ratings in the general rating formula are associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that the Veteran's occupational and social impairment must be "due to" those symptoms; hence, the Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. at 117. In other words, even if there are reports of social or occupational isolation in the record, there still must be evidence to establish that the severity, frequency and duration of this symptom is sufficient to produce 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; in order to warrant a 50 percent disability rating. The Board does not find such evidence in the present case. The Board particularly noted that the Veteran was still socializing with two friends and also taking graphic design classes. Therefore, the Board finds that the current disability of 30 percent is appropriate for the Veteran's PTSD rating prior to March 2015. The Board also finds that the criteria for a disability rating greater than 70 percent after March 6, 2015 are not met or more closely approximated. The Veteran's disability rating for PTSD was increased to 70 percent beginning March 6, 2015 in a June 2015 rating decision. The rating was based on the Veteran's March 2015 VA examination where the examiner summarized the Veteran's PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board finds that a rating in excess of 70 percent is not warranted. The record does not show that the Veteran's symptoms meet or more closely approximate the criteria for a 100 percent rating. There is no evidence that the Veteran's psychiatric disability results in total occupational and social impairment and there was no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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, or his own name. The Board acknowledges the Veteran's statements regarding his PTSD and depression symptoms. The Veteran was competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He was not, however, competent to identify a specific level of disability of his psychiatric disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective observations. In summary, the preponderance of the evidence is against the claim for a rating in excess of 30 percent prior to March 6, 2015, and in excess of 70 percent thereafter, for PTSD. 2. Entitlement to a rating greater than 50 percent for obstructive sleep apnea with bronchial asthma and dyspnea The appellant generally contends that the Veteran was entitled to an evaluation in excess of 50 percent for obstructive sleep apnea. No specific contentions at any time during the appeal have been made pertaining to the symptoms of this disability other than it caused his cardiac issues, for which the Veteran received a separate total disability rating. The Veteran's obstructive sleep apnea was evaluated under DC 6847 for sleep apnea syndromes. A 50 percent disability rating is warranted for sleep apnea that requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent disability rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or where a tracheostomy is required. The Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for obstructive sleep apnea. The medical evidence, which includes a private sleep study from February 2006 and a January 2011 VA examination were negative for any finding or indication that the Veteran's obstructive sleep apnea resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or required a tracheostomy. 38 C.F.R. § 4.97, DC 6847. Moreover, neither the Appellant nor the Veteran prior to his death has reported any symptoms of obstructive sleep apnea beyond the use of a CPAP device or asserted that the Veteran's disability satisfied any of the criteria required for a 100 percent evaluation. 3. Entitlement to a TDIU The appellant is seeking TDIU for the Veteran's service-connected disabilities prior to the September 22, 2010 grant for a 100 percent disability rating for his coronary artery disease. The Board notes that the period on appeal began one year prior to the July 30, 2010, submission of his increased rating claims, so, July 30, 2009. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). From July 30, 2009 to September 22, 2010, the Veteran's service-connected disability ratings were obstructive sleep apnea with a 50 percent rating, PTSD with a 30 percent rating and a back disability with a 10 percent rating. His combined disability ratings were 70 percent. Thus, he met the schedular criteria for TDIU. 38 C.F.R. § 4.16. In the Veteran's September 2010 application for TDIU (VA 21-8940), he reported that he stopped working in February 2007 due to his service-connected PTSD and sleep apnea. The Veteran also reported that he had one year of college. A January 2011 VA examiner opined that the Veteran is unable to work due to his heart condition and his PTSD as he feels angry and cannot tolerate people around him. The Veteran was granted a 100 percent disability for his coronary artery disease effective September 22, 2010. Ultimately the question as to whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that TDIU is warranted for the period beginning July 30, 2009 thru September 22, 2010, as the Veteran met the schedular criteria during this period and has shown that he was unable to secure and follow a substantially gainful occupation. In addition, the Board finds entitlement to TDIU effective from September 22, 2010 to be moot. The Veteran was granted a 100 percent disability for coronary artery disease effective September 22, 2010. In addition, the Veteran was granted special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) effective March 6, 2015. The Board notes a TDIU claim does not automatically become moot when a combined 100 percent schedular rating is assigned based on multiple service-connected disabilities because a separate award of TDIU predicated on a single disability could form the basis for an award of SMC under 38 U.S.C. § 1114 (s). However, the Board notes the Veteran did not state that a single service-connected disability made him unemployable but that two, his service-connected PTSD and obstructive sleep apnea made him unemployable. As such, entitlement to a TDIU from September 22, 2010, is considered moot. In summary, the criteria for TDIU between July 30, 2009 and September 22, 2010 have been met. Entitlement to TDIU after September 22, 2010 is moot. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.