Citation Nr: 21042780 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-02 530 DATE: July 13, 2021 ORDER Entitlement to an initial disability evaluation of 50 percent, but no higher, prior to January 28, 2020 for post-traumatic stress disorder (PTSD) is granted. Entitlement to an increased disability evaluation in excess of 70 percent from January 28, 2020 for PTSD is denied. REMANDED Entitlement to service connection for lumbar-spine disorder is remanded. Entitlement to service connection for cervical-spine disorder, to include as secondary to lumbar-spine disorder, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD, is remanded. Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. FINDINGS OF FACT 1. The objective medical evidence shows during the stage of the appeal period prior to January 28, 2020, the Veteran's PTSD more closely approximated occupational and social impairment with reduced reliability and productivity, due to associated symptoms. 2. The objective medical evidence shows during the stage of the appeal period from January 28, 2020, PTSD does not more closely approximate total occupational and social impairment, due to associated symptoms. CONCLUSIONS OF LAW 1. With resolution of all reasonable doubt in the Veteran's favor, in the period prior to January 28, 2020, the criteria for an initial disability evaluation at 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an increased disability evaluation in excess of 70 percent from January 28, 2020 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.6, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1987 to October 1991, for which, in addition to his other decorations, he was awarded the Combat Action Ribbon. Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14. 1. Entitlement to an initial disability evaluation in excess of 30 percent prior to January 28, 2020 for PTSD. 2. Entitlement to an increased disability evaluation in excess of 70 percent from January 28, 2020 for PTSD. The Veteran's PTSD is currently evaluated under Diagnostic Code 9411, which defers to the General Rating Formula for Mental Disorders (General Rating Formula), which provides a 30 percent evaluation for occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: Depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and/or mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130. A 50 percent evaluation requires demonstrated evidence of 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/or difficulty in establishing and maintaining effective work and social relationships. Id. 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating will be assigned for total occupational and social impairment, due to symptoms such 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, one's own occupation or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, which would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (DSM IV) at 32). The Board is aware that the DSM IV, which used GAF scores, was superseded in May 2013 by DSM 5 (5th edition), which does not. Nonetheless, the GAF scores were assigned in the period prior to the advent of DSM 5 and, if necessary, are for relevant consideration in the period at issue. As relevant to the record, a GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work). 51 to 60 is defined as "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers)," while a score between 61 and 70 is defined as "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships." While the Rating Schedule does indicate that the rating agency must be familiar with the Diagnostic and Statistical Manual of Mental Disorders, it does not assign disability percentages based solely on GAFs cores. See 38 C.F.R. § 4.130. Rather, GAF score of scores are but one factor to be considered in conjunction with all other pertinent evidence of record. Turning to the record, August and September 2012 VA mental health communication notes show the Veteran's reports of frequent nightmares of combat situations and he thinks he hears sirens sometimes when he is awake and sometimes while he is asleep. The mental status examination findings were the Veteran appeared as disheveled and anxious, he exhibited psychomotor agitation, constantly fidgeting and shaking his leg, speech rate was normal, slightly stuttering, volume was low, and articulation was normal, his affect was anxious, and mood was insecure, anxious, nervous. His thought processes were logical and goal-directed, no looseness of associations, and no flight of ideas, thought content indicated some suicidal ideation, but with no intent or plan, no current homicidal ideation, intent or plan, but he did exhibit negative thinking. The Veteran reported seeing things like a shadow in his peripheral vision. He was oriented to time, place, person, and situation, his recent and remote memory were intact and he reported flashbacks occurred every 2 weeks. The treatment provider assessed the Veteran's intelligence as average, his attention and concentration were good and his insight and judgment were fair. In a suicide risk assessment, the treatment provider concluded from the Veteran's responses that the Veteran was a moderate risk for suicide at that time. She added in her general assessment the Veteran is still marginally functioning, he does not feel able to go to work, PTSD symptoms are continuing to emerge, and now qualify for that diagnosis. She diagnosed adjustment disorder with depression and anxiety and "probable PTSD exacerbation." However, a group counselor a week later assessed the Veteran as a low risk for suicide at that time. Late September and October 2012 VA psychiatry notes show the Veteran's reports of improvement and of "ups and downs," but he stated, "the wave isn't as sharp, its more even," emphasizing decreased negative symptoms. The treatment provider noted the Veteran's reports of continued anxiety, but also a decrease from 3 panic attacks per week to 2 per week, but with shortness of breath, sweats and shakiness. His anxiety increased when he goes into a public space for any reason and he avoids driving. His symptoms of depression remain mostly unchanged. The Veteran denied a current suicidal ideation, with no intent or plan to harm himself. He reported that previous visual hallucinations (seeing shadows out of the corner of his eyes), but auditory hallucinations (hearing alarms) have become less frequent. The treatment provider's mental status examination findings were the Veteran was well-groomed, with good hygiene, reserved, there was restlessness of the lower extremity, and no mannerisms. The Veteran's speech showed normal rate, low volume and normal articulation. His affect was restricted and his mood was "up and down." His thought processes were normal, logical, and goal directed, without looseness of associations or flight of ideas. His thought content was normal, no delusions, no feelings of helplessness or hopelessness and no obsessions. In September, suicidal ideation was present, but passive (he alluded to overdosing), he denied suicidal intent or plan in October and in both months' homicidal ideation, intent, or plan were absent. He had occasional auditory hallucinations (alarms) and visual hallucinations (shadows in his peripheral vision), but no flashbacks. He was oriented to time, place, person, and situation, his memory was grossly intact, he showed average intelligence, fair/poor insight, fair judgment, and good attention and concentration, shown by attending to the interview, following conversation and responding appropriately. The treatment provider diagnosed anxiety disorder, not otherwise specified (NOS) and depressive disorder, NOS, but without any mention of PTSD. She assigned a GAF score of 50, indicating serious symptoms. November 2012 VA psychiatry notes show a diagnosis of anxiety, NOS, major depressive disorder, single episode and "Rule out" PTSD and the treatment provider assigned a GAF score of 47, indicating serious symptoms. She noted the Veteran endorsed being anxious regarding work, handling the stressors while at work, medications, and being on short-term disability benefits since the middle of August. He further endorsed multiple depressive symptoms, including "low mood," interrupted sleep, anhedonia, guilt regarding his inability to work, decreased energy, worsening concentration and memory, and intermittent passive suicidal ideation without plan or intent. He also endorsed anxiety symptoms, including constant worry about work, finances, health insurance, ruminating thoughts, muscle tension, difficulty relaxing, and intermittently feeling "keyed up." He endorsed PTSD symptoms of reduced nightmares at an average of 1 per week, waking up gasping for air and sweating, rare flashbacks, intrusive memories, hypervigilance, and hyperarousal. He also endorsed possible audio hallucinations of hearing "bells from work" and visual hallucinations of shadows in his peripheral vision. The Veteran denied any symptoms of mania or other symptoms of psychosis. The treatment provider concluded he did not pose as at imminent risk for danger to himself or others at that time. Her mental status examination findings were the Veteran was well-groomed, pleasant and cooperative, he was restless and fidgeted, his mood was "anxious," with congruent affect, thought process was linear and goal directed, and speech was within normal limits for rate and volume. Suicidal ideation and hallucinations were reported as stated above. Later in November 2012, a different treatment provider's mental status examination findings showed the Veteran was pleasant and cooperative, no abnormal movements, no psychomotor agitation, mood was "better" with congruent, bright affect, thought process was linear and goal directed, speech within normal limits for rate and volume, cognition was intact and judgment and insight were fair, but the Veteran denied suicidal ideation, homicidal ideation and hallucinations In a February 2013 VA examination for PTSD, the examiner at the outset stated the Veteran's symptoms do not meet the diagnostic criteria for PTSD under the required criteria. However, she diagnosed anxiety disorder, not otherwise specified (NOS), adding it is more likely than not due to psycho-social stressors, including a high stress occupation and an alternating work schedule. She assigned a GAF score of 60, indicating moderate symptoms. The examiner found associated symptoms of mild to moderate depressed mood, anhedonia and insomnia; mildly poor concentration; "ok" self-esteem; no guilt; mild hopelessness; infrequent passive thoughts of death; no suicidal/homicidal ideation, mania, impulsivity or seizures; and moderate anxiety. The behavioral observations were that the Veteran drove himself to the appointment that day, arrived on time, showed good eye contact, normal response latencies, interacted pleasantly with spontaneous speech, he communicates well, and a rapport was easily established. Mental status examination findings were that he was casually dressed, groomed, good hygiene, normal behavior, no mannerisms; speech showed normal rate, volume, articulation, and prosody; affect was normal, with broad range; mood was euthymic, somewhat anxious; thought processes were normal, logical and goal directed, no looseness of associations or flight of ideas; thought content was unremarkable, with no delusions, obsessions, suicidal or homicidal ideation, intent or plan; no auditory and visual hallucinations; oriented to person, time, place; average intelligence; good attention and concentration; correct forward and backwards spelling and correct backwards serial sevens; intact abstract thought and insight; good judgment; memory within normal limits; frequent waking due to anxiety and work schedule and sporadic nightmares; has diagnosis and CPAP machine but does not use it; low energy; knee and back pain; appetite was "so-so;" and weight was stable. The examiner found occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. She noted the Veteran's reports of job pressure, related nightmares, related stress, being overwhelmed, and easily aggravated. Between April 2013 and June 2014, VA psychiatry resident notes show the Veteran's reports of intermittent feelings of hopelessness, mood was variously "anxious," "worse," "better than before," "a little better," "up and down," "better," and "ok," with low to fair energy levels. Affect in September 2013 was anxious, but reactive. The Veteran endorsed feeling more fatigued as the day progresses, sleep has been more restful, with rare nightmares once per month, which are vivid but not as disturbing. He denied appetite problems. September and December 2013 showed mild psychomotor restlessness. The Veteran goes swimming twice/week, but he reported hypervigilance at the pool and other busy/crowded places. He further endorsed mildly increased startled response, seeing shadows in 2014, described as visual perceptions or illusions, he denied flashbacks, audio/visual hallucinations, suicidal ideation, homicidal ideation, plan or intent, and any access to firearms. Mental status examination findings were that he was well groomed, fair hygiene, casually dressed, and in no apparent distress; no mannerisms, abnormal movements, tics, or tremors, although in July 2013 he was mildly restless; he was cooperative and pleasant; speech was conversational, with normal rate and volume; mood and affect were "ok," mood congruent; thought processes were logical and goal directed, with no flight of ideas; intact associations; thought content in July 2013 showed ruminative worrying and later, no delusions, no feelings of helplessness or hopelessness, and no obsessions; no suicidal or homicidal ideation, intent or plan; no auditory or visual hallucinations and no flashbacks; oriented to time, place, person, and situation; intact recent and remote memory; average fund of knowledge; good attention and concentration; and good insight and judgment. Diagnoses in this period included PTSD and depressive disorder, NOS, rule out dysthymia and rule out major depressive disorder. GAF scores, when assigned, were at 47, indicating serious symptoms. A VA physician's statement in April 2014 states the Veteran's present symptoms include dysphoric mood, intrusive thoughts, hypervigilance, nightmares and anhedonia. "PTSD symptoms are notably related to military experience. He is motivated in regular treatment, but continues to have mild to moderate residual symptoms, which affect his daily functioning." In an August 2014 VA examination for PTSD, the examiner diagnosed that disorder. She noted the Veteran reports of losing his job in 2013 due to substandard performance, but also having difficulty concentrating on his job and getting into verbal altercations with coworkers. He further reported he has a few friends, but is isolating himself, as he feels others do not understand his problems. The Veteran reported he has failed timed mechanical aptitude tests during job applications, as he is anxious and has difficulty concentrating due to the anxiety; "therefore, timed test-taking is currently almost a certain failure for him right now." The examiner found related symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. Her behavioral observations showed punctuality, sustained eye contact, normal response latencies, pleasant interaction with spontaneous speech, and the Veteran communicates well. In the more comprehensive mental status examination, she found the Veteran casually dressed, well-groomed, with good hygiene; normal behavior, no mannerisms, no tic or tremor, no EPS [extrapyramidal symptoms] or TD [tardive dyskinesia], no dysarthria or ataxia; speech showed normal rate, volume, articulation, and prosody; his affect was constricted, tearful and his mood dysphoric; his thought processes were normal, logical and goal directed, and no looseness of associations, or flight of ideas; his thought content was unremarkable, with no delusions or obsessions, suicidal or homicidal ideation, intent or plan, and he denied auditory and visual hallucinations. The Veteran's cognition showed he was oriented to time, place, he showed average intelligence, he reported difficulties with attention and concentration, but abstract thought was intact, good insight, good judgment, and memory was within normal limits. His sleep is non-restorative, he reported CPAP use, but he has traumatic memories related to his combat deployments when wearing the CPAP mask, so many nights he tears it off (the examiner noted details of time-in-bed, amount of uninterrupted sleep, etc.), he wakes from combat-related nightmares, coming in clusters of 2-3 times per month, and has trouble sometimes falling back to sleep; he reported low energy; he tolerates pain mostly without medication, he had gained a little weight, and he sporadically goes swimming. The August 2014 examiner also added her functional analysis, finding the Veteran has limited capacity to adapt to a range of interpersonal situations, he can be friendly and assertive, but at this time his energy and self-esteem are so low that he has difficulty asserting himself in social situations, but he shows appropriate concern and empathy for others. His cognitive capacity was within normal limits with minor cognitive inefficiencies due to PTSD symptoms. Occupational capacity was within normal limits. His sense of self is cohesive and reality based, although self-esteem is "not good;" his purpose in life is being re-defined and Veteran is future-oriented to meet his life goals. His behavioral controls were within normal limits. She found 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. September and October 2014 mental health communication notes show mental status examination findings identical to the August 2014 VA examination in appearance, behavior, speech, thought processes, thought content, cognition, and hallucinations. Exceptions were, during part of September, left-lower-leg agitation, attention and concentration was good, and the Veteran's mood was anxious, with his affect congruent to mood. The treatment providers assessed the Veteran with PTSD and unspecified depressive disorder, as well as major depressive disorder, recurrent episodes, mild. In a January 2015 VA psychiatry note, although mental status examination findings were again for the most part the same or similar to the previous results, the Veteran reported intermittent passive suicidal ideation, flashbacks and his mood, as stated above, was "not good," with a restricted affect. The Veteran also reported to the treatment provider anxiety was "pretty bad," energy level "not good," nightmares 2-3 times per month, and concentration was poor. The treatment provider diagnosed PTSD, depression unspecified and anxiety, unspecified. Between January 2015 and January 2016, VA psychiatric progress notes show the same reports and mental status examination findings the same or similar to the above; however, there were no further reports of passive suicidal ideation, but he reported feelings of helplessness or hopelessness. His mood was "down" and his affect was restricted and anxious. Diagnoses, when given, were as above. August through December 2015 VA social work notes show the same basic mental status examination findings, although the interviewer noted the Veteran was "jittery, kept bouncing leg up and down. Seemed to decrease somewhat by end of session." There were no reports of suicidal ideation. "Denies that he would harm self, denies any past attempts. He states he would not want to harm elderly mother or daughter. He does not own any guns, states he sold it to get cash." The Veteran reported flashbacks. The interviewer further noted "[h]e is future oriented, plans on starting classes again." His mood was depressed and anxious and his affect was restricted and anxious. An October 2015 VA therapist note shows the Veteran was assessed as being a few minutes late for his appointment, appropriately and casually dressed, hygiene and appearance were good, he was alert and engaged in the session, he was cooperative and pleasant, oriented to person, place, time, and situation, his mood appeared anxious and his affect was appropriate to content, and he did not express any suicidal or homicidal ideations. In a November 2016 VA mental health outpatient note, mental status examination findings showed the Veteran was cooperative and engaged, no psychomotor agitation or retardation, good eye contact, speech within normal limits, depressed, anxious mood, affect congruent to mood, the Veteran denied suicidal/homicidal ideas/plans, psychosis, and mania, his thought process was linear, and he showed no gross cognitive deficits. As stated above, the symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, of their effects or of an equivalent occupational and social impairment which would justify a higher rating. Therefore, the Board will consider when necessary whether some symptoms may be reasonably similar to or suggested by the criteria associated with the higher ratings of the General Rating Formula. However, in looking to 38 C.F.R. § 4.126 (a), the Board also notes that it "shall consider frequency, severity, and duration of psychiatric symptoms...." The Board understands that regulation, in its use of the phrase "shall consider," to require consideration of such factors. See also Vasquez-Claudio v. Shinseki, 713 F.3d 112 116-17 ("Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level") (Fed. Cir. 2013). Consequently, in following this directive, the Board will consider the factual context regarding symptoms, that is to say, by their temporal significance and their intensity. The above record of treatment and examination in the period prior to January 28, 2020 shows the Veteran's symptoms of PTSD more closely approximate the more severe occupational and social impairment showing reduced reliability and productivity and is entitled in this period to a higher disability rating of 50 percent. Among the several criteria indicating the Veteran's degree of impairment, by way of example, are disturbances of motivation and mood and/or difficulty in establishing and maintaining effective work and social relationships. For example, the August 2014 VA examiner noted the Veteran's reports of losing his job in 2013 due to substandard performance; he also specifically mentioned having difficulty concentrating on his job. He had also reported that, in seeking new employment, he found, due anxiousness and difficulty concentrating, he could not perform the mechanical aptitude tests, which were conducted under timed conditions. Moreover, he reported that one of the reasons for which he was terminated was involvement in verbal altercations with co-workers. He added that he has few friends and had been isolating himself. Additionally, the August 2014 VA examiner observed in her functional assessment of the Veteran that he has limited capacity to adapt to a range of interpersonal situations, he can be friendly and assertive, but at this time his energy and self-esteem are so low that he has difficulty asserting himself in social situations. This symptomatic behavior is consistent with or reasonably similar to the rating criteria for this level of occupational and social impairment. A higher evaluation at 70 percent is not warranted, as the record shows no findings suggesting impaired communication capacity or thought processes. Although the Veteran reported in some instance's suicidal thoughts, he consistently denied any plan or intent and further denied any history of attempts. The examiners and treatment providers in turn consistently characterized his reports as "occasional" and "intermittent" and regarding thoughts about death, as "passive" and "infrequent." After beginning mental health treatment at VA in early September 2012, the mental health professional with whom he had his initial encounter assessed the Veteran at a moderate risk for suicide. A week later, another treatment provider him as a low risk for suicide. By November 2012, he was assessed as not an imminent risk. Afterward, none of the treatment providers or examiners address risk levels with any urgency. The record for this period therefore does not show frequency, duration, or severity in these reports. The next higher rating under the General Rating Formula is for 100 percent for total occupational and social impairment, due to associated symptoms. As set forth above, such symptoms under the General Rating Formula would be similar to or suggested by 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, one's own occupation or own name. These are symptoms of total disability, effectively precluding all independent functioning. However, the record in this period does not show reports or findings of symptoms reasonably similar to grossly impaired thought processes, diminished communication abilities, irritability leading to violence, or grossly inappropriate behavior, as well as any inability to perform activities of daily living, disorientation of any sort or indications of persistent hallucinations. Although in this period the Veteran reported instances of "possibly" hearing sounds or "occasional" appearances of fleeting shadows out of the corner of his eye, the notes of the treatment providers and examiners suggest these reports were tentatively made, uncertain in detail and reported infrequently. This does not reasonably indicate total occupational and social impairment. In the period from January 28, 2020, as directed in the Board's May 2019 Remand, the Veteran was afforded another VA examination for PTSD in January 2020, in which the examiner diagnosed PTSD, chronic. She noted the Veteran's reports as stated in the August 2014 examination. The Veteran also reported an increase in depressed mood, as he lost his job and his marital difficulties began, as well as experiencing left-upper-extremity pain. He further reported increased hopelessness, decreased interest in the activities he used to enjoy, becoming more socially withdrawn, feeling "moody," and having difficulty with memory and concentration, beginning approximately 2 years earlier. However, although he reported his concentration difficulties have not worsened since the onset of his depressed mood, he in fact reported forgetfulness and the increased need to write notes and refer to them at work. He reported startled reflex, but he denied psychomotor agitation/retardation, as well as any changes in sleep, appetite and energy. He reported traumatic events during active service and has had nightmares every 4-5 months, intrusive thoughts approximately 4-5 times a year and some flashbacks. He reported past irritability, low frustration tolerance and a "short fuse." The Veteran further denied current suicidal or homicidal ideation, current intent or plan and current psychotic symptoms, including auditory and visual hallucinations, paranoia and delusional thought content. The January 2020 examiner found symptoms associated with the Veteran's diagnosis of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and suicidal ideation. Her behavioral observations showed the Veteran presented as generally calm and cooperative throughout assessment, with appropriate grooming and hygiene, his speech and language were intact throughout, without hyperverbal or pressured speech. However, he exhibited notable psychomotor agitation throughout, with frequent wringing of his hands and leg-shaking. He described his current mood as "depressed" and his affect appeared dysthymic, restricted and at times tearful when discussing prior military experiences. The Veteran's thought process was generally linear, logical and goal-directed and his thought content indicated no current thoughts for suicide or homicide, no paranoia and no delusional thought content. He denied auditory or visual hallucinations. He exhibited fair insight and judgment at this time "in setting of ability to identify his current mental health symptoms and associated need for continued mental health treatment with outpatient provider." The January 2020 examiner found Occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination for PTSD in August 2020, in which the examiner diagnosed that disorder. The examiner summarized in her remarks the reports of the Veteran, most of which are set forth above in the previous examination, but also include irritability, suppressed anger, mistrust of others, increased isolation, cold sweats at night, and sleep problems. She found associated symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner's behavioral observations were the Veteran exhibited depressed mood, limited eye contact, he denied any self-harm thoughts or behavior, no crisis noted, the Veteran is adjusting now in Los Angeles, as he transferred his job from San Francisco to Southern California, he feels depressed and socially isolated, extreme anxiety in approaching others, he has sleep disturbance, and the examiner noted no thought disorder. She found 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. In a September 2020 VA telehealth consult note, the Veteran reported greater fatigue and irritability in the past few months, difficulty keeping track of appointments and needs to write them down, difficulty falling back asleep 2-3 nights per week due to "mind racing" with thoughts of future tasks or nightmares 2-3 nights per week, not always trauma-related. He further reported his mood has been "a little down," he thinks about death as an escape, but denied thoughts about ending his own life, he has had suicidal ideation without a plan or intent several years ago, he denied a history of suicide attempts, but he reported his daughter as a protective factor. He reported normal appetite, does not enjoy anything aside from "resting," he does not experience any problem being out in a social setting as long as it is not crowded, although he avoids crowded places or areas with loud sounds, by which he is easily startled. He feels distant from others, a burden to others at times, irritable, but has been working on curbing his anger, denies ever causing serious harm, although he has past involvement in fights and having broken objects, and when certain memories are triggered, he will feel "incredibly sweaty." Mental status examination findings show the Veteran expressed frustration with his VA medical facility in general, though still cooperative and not hostile during this interview, speech showed normal rate and prosody, volume initially loud when upset, then normal afterwards, mood was "upset" and vocal affect was congruent, thought processes were linear, thought content was without evidence of delusional material, he denied suicidal ideation, he showed adequate attention conversation, and showed intact insight and judgment. The Veteran in this period is currently rated at 70 percent. As already stated, the next higher rating under the General Rating Formula is for 100 percent for total occupational and social impairment, due to associated symptoms as set forth and discussed above. Once again, the record in this period does not show reports or findings of symptoms reasonably similar to grossly impaired thought processes, diminished communication abilities, irritability leading to violence, or grossly inappropriate behavior, as well as any inability to perform activities of daily living, disorientation of any sort or indications of persistent hallucinations. Additionally, similar to the period prior to January 28, 2020, although the Veteran reported to the January 2020 examiner he "thinks about death as an escape," nonetheless he denied thoughts about ending his own life. This does not rise to a level in frequency and severity of a "persistent danger of hurting" himself. Based on these or similar criteria, the record does not provide evidence of complete and total impairment in this period. The Board has carefully considered the Veteran's extensive reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. Nonetheless, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The statements and the Veteran's reports to examiners and treatment providers give highly detailed information of the Veteran's current symptoms at various times. However, as a factual determination by the Board, in the period of treatment and examination between 2012 and 2020, the findings, made after noting and considering the Veteran's reports, are consistent in the identification of symptoms relevant for rating purposes. The Board therefore assigns more probative value to the findings of the numerous VA examiners and treatment providers, as almost all are psychiatric professionals who conducted their examinations and interviews during in-person sessions with the Veteran, they thoroughly reviewed the Veteran's medical history and their findings are adequate for VA rating purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the reasons stated and based on the objective medical evidence, the Board finds the evidence reasonably supports an initial disability evaluation of 50 percent prior to January 28, 2020, but is against an increased evaluation in excess of 70 percent thereafter. The Board has considered the benefit-of-the-doubt doctrine. However, regarding the claim on which the Board has not ruled favorably, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for lumbar-spine disorder. 2. Entitlement to service connection for cervical-spine disorder, to include as secondary to lumbar-spine disorder. 3. Entitlement to service connection OSA, to include as secondary to service-connected PTSD. 4. Entitlement to TDIU. In its May 2019 Remand, the Board noted that, while service treatment records (STRs) were obtained in November 2001, those records appear incomplete, as the only records provided were the Veteran's enlistment examination. The Board directed that, on remand, complete STRs be obtained, specifically stating all efforts to obtain these records must be documented in the claims file and "[i]f any such records are determined to be unavailable, issue a formal finding of unavailability and notify the Veteran of this fact." The Agency of Original Jurisdiction (AOJ) made a request for STRs in August 2019, specifying "[m]edical/dental records and entire personnel file at NPRC [National Personnel Record Center]." The response received later that month stated, "On 08/24/2019; all available requested records were shipped to the contracted scan vendor for upload into VBMS." The Board cannot tell from this response precisely what records were sent on for scanning and nothing relevant to the request appears in the file after this response. If STRs were obtained and scanned, they do not appear in the file after the date of the response to the request. Nonetheless, and most pertinent to the substantial compliance with the directives of the previous Remand, if no additional STRs were found, the Board has previously directed there be issuance of "a formal finding of unavailability and notif[ication to] the Veteran of this fact." As it is, the Board cannot determine whether this matter is effectively closed because additional STRs do not exist or because they have been scanned, but not yet associated with the file, or that further attempts to obtain them would be futile. Depending on which of the foregoing alternatives is relevant, there is as yet no way to know if there has been substantial compliance with the Board's directive in its May 2019 Remand. If no complete or additional STRs can be obtained, the Board still requires a formal finding of unavailability and the Veteran and his representative be notified of that finding. The Board cannot proceed to determine service connection for the above claims if complete or additional STRs can be obtained. Moreover, as the issue of entitlement to TDIU remains inextricably intertwined with the above claims, the Board defers appellate consideration of the TDIU claim pending completion of the action directed below and the return of the claims to the Board. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for lumbar-spine disorder, cervical-spine disorder and OSA at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Simultaneous to the above directive, request from the usual and appropriate official source the Veteran's complete STRs or any additional outstanding STRs. In the course of that request, inform the official source of the prior response in August 2019, which stated, "all available requested records were shipped to the contracted scan vendor for upload into VBMS," and further inform the source that no subsequent records appear in VBMS. If necessary, follow-up with further inquiries regarding the prior response in May 2019 in order to track down the records to which the response refers. Document in the claims file all efforts regarding inquiries for obtaining the STRs. If after all reasonable efforts have been made and no further STRs can be obtained, issue a formal finding of unavailability and notify by letter the Veteran and his representative of this fact. Associate that finding and notification letters with the file. 3. Upon completion of the above development and any further necessary development, (to include update employment and educational information from the Veteran,) readjudicate the claims, to include TDIU. To the extent the benefits sought are not granted, issue an Supplemental Statement of the Case outlining all pertinent evidence and discussing adjudication of the claims and send it to the Veteran and his representative. Allow an appropriate opportunity for the Veteran's response before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, Associate 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.