Citation Nr: 21039851 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-45 117 DATE: July 1, 2021 ORDER Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), in excess of 50 percent prior to March 17, 2021 and in excess of 70 percent thereafter is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. Prior to March 17, 2021, the Veteran's PTSD did not result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From March 17, 2021, the Veteran did not have total occupational and social impairment due to PTSD. 3. A preponderance of the evidence shows that a cervical spine disability was not incurred in service. 4. A preponderance of the evidence shows that a lumbar spine disability was not incurred in service. 5. Arthritis of the cervical and lumbar spine did not manifest to a compensable degree within one year of service separation, and symptoms of arthritis in the cervical and lumbar spine were not chronic in service and continuous after service separation. 6. The Veteran does not have a current diagnosis of sleep apnea. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating for PTSD, in excess of 50 percent prior to March 17, 2021 and in excess of 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from July 1974 to June 1979, and with the Reserves from January 2003 to January 2004, January 2004 to June 2004, and from June 2007 to December 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and August 2017 rating decisions. The Veteran testified before the undersigned Veterans Law Judge at an August 2020 Board virtual hearing. The hearing transcript is of record. The Board remanded the appeal in February 2021 to request for private treatment records identified by the Veteran during the hearing, and for updated VA examinations to address PTSD and claimed cervical and lumbar spine disabilities. The remand directives provided that a VA examination for sleep apnea was only necessary if requested treatment records showed a current diagnosis. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand directives. The AOJ contacted the Veteran in a February 2021 letter to request that he complete enclosed Authorizations of Disclose Information, and General Releases for Medical Provider Information so that they could request records from Evers Psychological for PTSD, and other treatment providers for sleep apnea and cervical and lumbar spine disabilities. The Veteran was also informed that he could obtain and send the records himself if possible. To date, the Veteran has not submitted the release forms and has not provided contact information for his treatment providers so that VA can request the outstanding records. The Board finds, therefore, that no further action is necessary to assist the Veteran in this case and the decision will be based on the evidence of record. See 38 C.F.R. § 3.655; see also Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that the duty to assist is not always a one-way street, or a blind alley, and that the veteran must be prepared to cooperate with the VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim.). VA examinations addressing PTSD and the Veteran's cervical and lumbar have been obtained on remand. 1. Entitlement to a higher initial rating for posttraumatic stress disorder, in excess of 50 percent prior to March 17, 2021 and in excess of 70 percent thereafter Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In rendering a decision, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran is in receipt of a staged 50 percent and 70 percent ratings for service-connected PTSD. A 50 percent disability 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 A 70 percent disability 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 that is 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. 38 C.F.R. § 4.130. A higher 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). The Veteran and his representative contend that a 70 percent rating is warranted for PTSD for the entire rating period. During an August 2020 Board hearing, with regard to PTSD, the Veteran described being isolated for the most part, but did report that he occasionally went out with a veteran's group. He described anger issues and was working full time. The Veteran noted during Board hearing testimony that he was receiving treatment for PTSD from private treatment providers. However, as noted in the introduction above, the Veteran did not submit the forms necessary to obtain the outstanding treatment records. February 2017 and March 2021 VA examiners both found that 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, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation, which is consistent with a 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. However, examinations showed that the Veteran exhibited some symptoms associated with higher ratings. The February 2017 VA examination identified symptoms which included irritable behavior or angry outbursts, also noted by the Veteran at the time of a Board hearing, problems with concentration, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment, as well as symptoms indicated for a 50 percent rating, specifically, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Board finds that prior to March 17, 2021, the Veteran's PTSD was consistent with a 50 percent rating based on the evidence from the February 2017 VA examination. The examination did not identify occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a higher 70 percent rating. The examination shows that the Veteran was working full time with the Department of the Army Regional Support command where he ran operations and information technology. He reported that he truly enjoyed his work and felt safe there. He did report some days where concentration at work was poor. As for social relationships, his two sons lived in his home, and he noted having maintained his relationship with his daughter and father, but did report that he isolated a great deal. He also testified as to going out occasionally with a veteran's group. Behavioral observations showed that the Veteran was anxious, but this thought processes were intact and there was no impairment in thought, cognition, behavior, or emotional control. Thus, the Board finds that while the Veteran had deficiencies in mood, he did not have deficiencies in most areas such as work, school, family relations, judgment, or thinking as indicated for a 70 percent rating. Moreover, at the time of the February 2017 VA examination, he did not exhibit symptoms of such a severity as indicated for a 70 percent rating. For these reasons, the Board finds that prior to March 17, 2021, the Veteran's PTSD and associated impairment more nearly approximates the criteria for a 50 percent rating. The Board finds that it is not factually ascertainable that an increase in the Veteran's disability had occurred prior ot the date of the March 17, 2021 VA examination. For these reasons, prior to March 17, 2021, a higher 70 percent rating for PTSD is not warranted. From March 17, 2017, the Veteran was in receipt of a 70 percent rating for PTSD based on occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms. The March 17, 2021 VA examination shows that the Veteran continued to have PTSD symptoms mentioned at his prior February 2017 VA examination, as well as anger issues, anxiety, and depressed mood. The VA examiner found that the veteran had not experienced any decrement in the severity of his symptoms in the four years since his last examination. The examiner reported that the Veteran, in fact, experienced a significant increase in the severity of his mental health disorder and associated impairment. The Board finds that this increase in the severity of the Veteran's impairment is addressed by the assignment of a higher 70 percent rating. Additional symptoms identified by the VA examiner included mild memory loss, such as forgetting names, directions, or recent events, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran reported that he did not experience any significant change in his social or family history since the date of his last VA examination. He continued to reside with his sons, had a good relationship with his daughter, and he maintained relationships with both parents until their respective deaths. His relationship with his siblings was described as emotionally detached, but he reported having peer friendships including with neighbors. The Board finds that the severity of the Veteran's PTSD and symptoms from March 17, 2021 is consistent with the assigned 70 percent rating. The Board finds that the next higher 100 percent rating is not warranted. While the Veteran was noted by the VA examiner to have intermittent inability to perform activities of daily living, the Board finds that his PTSD does not otherwise approximate the criteria for a 100 percent rating based on total occupational and social impairment. VA examinations show that he has been employed full time for the entire appeal period and the March 2021 VA examiner noted that the Veteran had been at the same job for the past 19 years. The Veteran also did not have total social impairment, maintained relationships with his children and socialized with friends. Moreover, VA examinations did not identify any other symptomatology of such severity as indicated for a 100 percent (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name), nor is it clear from the examination interview to what extent the Veteran was not able to perform activities of daily living. In that regard, there is no indication that the Veteran was intermittently unable to perform activities of daily living such as feeding himself, dress himself, or maintaining minimal personal hygiene. He was noted to be well groomed and appropriately attired during a mental status examination that day. The Board finds that the weight of the evidence does not show that the Veteran had total occupational or total social impairment due to PTSD symptoms to warrant a 100 percent rating and the weight of the evidence shows that the degree of severity of the Veteran's psychiatric symptoms and functional impairment is not consistent with a 100 percent rating. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to service connection for a cervical and lumbar spine disabilities The Veteran contends that currently diagnosed back and cervical spine disabilities are related to service. He contends in hearing testimony that low back pain is related to heavy lifting in service, and reported that he was seen by a field officer once or twice with back pain and was given Motrin. He reported receiving chiropractic treatment some years later. He reported a neck injury at Dover Air Force Base in 1991 or 1992. The Board finds that the Veteran's testimony is credible. The Board notes that while the Veteran was asked about the chronicity of his symptoms since service, he did not clearly identify chronic or continuous symptoms of back or neck pain in service and post service in hearing testimony. He did report having continual cervical problems in terms of mobility. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that, while the Veteran has a current diagnosis of cervical spine degenerative disc disease and lumbar spine arthritis and degenerative disc disease shown by private treatment records and March 2021 VA examinations, and evidence shows that he had a cervical strain injury in service, and back pain noted at the time of a 2004 deployment, the preponderance of the evidence weighs against finding that the Veteran's current diagnoses began during service or are otherwise related to the in-service injury or complaint. Service treatment records show that the Veteran was treated for left-sided neck and upper back pain in July 1992, consistent with the Veteran's testimony, after weightlifting. A physical examination showed tightening of the trapezius muscle and left rhomboid muscle in the upper back and he was diagnosed with resolving cervical strain. No recurrent back pain was noted in July 1995 or October 2000 reports of medical history. In an April 2004 Post Deployment Health Assessment, the Veteran checked "yes" to a question of whether he had back pain at any time during his deployment, but did not check that he presently had back pain. The Veteran did not report any back pain on an October 2000 Post Deployment Health Assessment. The Board finds that while the Veteran was treated for cervical spine strain on one occasion in service, he did not have chronic cervical spine symptoms in service as no further incidents of cervical spine pain were noted in service treatment record. The Board finds that the Veteran's testimony as to having continual cervical problems in terms of mobility is vague, and does not establish the presence of both chronic symptoms in service and continuous symptoms since service separation, rather than current symptomatology which the Veteran believes is related to service. The Board finds that while the Veteran reported back pain at the time of his 2004 deployment, however, back pain symptoms were similarly not shown to be chronic in service. While the Veteran reported in April 2004 that he had back pain during his deployment, he denied the presence of pain at the time of the April 2004 Post Deployment Health Assessment. Had back pain continued to be present, the Board finds that the Veteran would have checked yes to both questions. He also denied back pain at the time of the October 2000 Post Deployment Health Assessment. Private treatment records from Larchmont Medical Imaging and Reconstructive Orthopedics show the Veteran was not diagnosed with cervical and lumbar spine disabilities until 2018, over a decade after his in-service injuries, and years after his separation from service. For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year after service separation. While the Veteran is competent to report having experienced symptoms of back and neck pain in service, and intermittent symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For example, the Veteran was shown to have a cervical muscle strain in service, but currently has degenerative disc disease of the cervical spine. The Board finds that the Veteran is not competent to relate his cervical spine mobility issues in service due to strain to current conditions of the spine and joints. Further, the March 2021 VA examiner opined that the Veteran's current cervical spine and lumbar spine disabilities are not, at least as likely as not, related to acute cervical and lumbar spine conditions documented in service. The rationale was that remaining service treatment records were silent for a chronic, recurring lumbar or cervical spine condition. Based on this, the VA examiner found that the in-service conditions resolved and there were no post-service records to document a current, chronic cervical or lumbar spine condition until a few years ago. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his cervical and lumbar spine disabilities are related to service. However, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex and is outside the competence of the Veteran. Consequently, the Board gives more probative weight to the March 2021 VA medical opinions which were provided by a physician. For these reasons, the Board finds that the preponderance of the evidence is against finding that currently diagnosed degenerative disc disease of the cervical spine, and degenerative disc and joint disease of the lumbar spine were incurred in service. 3. Entitlement to service connection for sleep apnea The Veteran contends that sleep apnea was incurred in service or is secondary to service-connected PTSD. The Board finds that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records and private treatment records do not contain a diagnosis of sleep apnea. The Veteran testified that he had not been diagnosed with sleep apnea, but reported that he was going to have a sleep study scheduled. The Board remand requested that the Veteran provide any evidence relating to his claim for sleep apnea, to include the referenced sleep study; however, no evidence was identified or submitted by the Veteran. (Continued on the next page) The evidence of record does not identify a current diagnosis of sleep apnea. While the Veteran believes he has sleep apnea, he is not competent to provide a diagnosis in this case. A diagnosis of sleep apnea requires evaluation with a sleep study, and the ability to interpret the results of a diagnostic sleep study. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Absent any medical evidence of sleep apnea, the Board finds that service connection is not warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.