Citation Nr: 22016645 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 17-39 923A DATE: March 23, 2022 ORDER A 70 percent schedular rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran's PTSD was manifested by occupational and social impairment with deficiencies in the areas of work, family relations, and mood, but was not productive of total social and occupational impairment. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2004 to April 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2016 and January 2017 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). Preliminarily, the Board notes that the Veteran was scheduled for a Board hearing on May 13, 2020. That hearing date was postponed, and the Veteran was rescheduled for a Board hearing on March 2, 2021. The Veteran did not attend the hearing. Therefore, the hearing request is deemed withdrawn. Increased Ratings Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 50 percent rating is warranted for PTSD which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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, Diagnostic Code 9411. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's PTSD is currently assigned a disability rating of 50 percent, effective May 1, 2007. The Board finds an increased rating for the Veteran's service-connected PTSD is warranted. Turning to the evidence, as part of his July 2016 increased rating claim, the Veteran reported that he had a problem with his mood and periods of violence. A June 2016 Hospital Notification report stated that the Veteran had a 21-day psychiatric admission for suicidal ideation. The June 2016 Discharge Summary reflected that his wife brought him for his worsening mood symptoms and PTSD symptoms. At that time, the Veteran endorsed symptoms of insomnia, suicidal and homicidal ideations, history of alcohol dependence, and agitation and irritability. He noted that he was previously hospitalized at the VA in 2011, following an incident of where he had the intent of committing suicide. He denied any auditory or visual hallucinations. Notably, his mood at discharge was euthymic and his behavior was appropriate. He was alert and oriented with insight and judgment intact. A July 2016 Caregiver Assessment by a VA social worker noted that the Veteran's wife is a professional caregiver. The social worker indicated that the Veteran's wife reported that the Veteran would need reminders to take medication, bathe, and groom. The Veteran's wife also reported that the Veteran would need help with laundry, meal preparation, light housekeeping, and shopping. Notably, however, the assessment report also notes that the Veteran has a full-time job as a mechanic at Capstone Mining. An April 2017 VA treatment record indicates that the Veteran endorsed flashbacks occurring once or twice a month and anxiety when in crowds. The Veteran denied suicidal or homicidal ideation. In a November 2016 VA PTSD examination report, the VA examiner indicated that the Veteran had PTSD symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and difficulty in relationships. However, the VA examiner also noted that the Veteran currently works as a mechanic for Capstone Mining Corporation for the past four years. The Veteran endorsed difficulty at work as he gets verbal reprimands for "mouthing off." The Veteran endorsed fleeting suicidal ideation without plans. The Veteran continued to struggle with nightmares, insomnia, irritability, anger, and depression. The Veteran also endorsed sobriety for the past eight months. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgement, and suicidal ideation. The VA examiner observed that the Veteran was well groomed and neatly dressed but that he was agitated during the interview, constantly shifting in his chair, and wringing his hands. The Veteran also had memory that was "spotty," poor concentration, and limited insight. The VA examiner opined that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity. In January 2017 buddy statements, the Veteran's two coworkers reported that the Veteran struggles mentally at work. One coworker stated that "he had heard him get angry towards situations, people at work, and jobs assigned to him." Additionally, his other coworker stated that "his mind is not always at work and sometimes he would get mood swings." Further, in a February 2017 statement by the Veteran's shift foreman reported that the Veteran's "anger has gotten the best of the Veteran, and he had witnessed the Veteran's outrages." He also reported that the Veteran "shuts down from his whole crew" when he is down and "on a rare occasion breaks down emotionally." In a February 2017 statement, the Veteran's wife reported that since the Veteran's discharge he has struggled with his PTSD, mood, anxiety, and stress. She noted that she has to take care of him as if he was a child, specifically noting that she "reminds him to shower, eat, and take care of himself in general." A March 2019 VA PTSD examination report reflects that the Veteran currently works as a mechanic in the mining field. He reported that he recently left his job at Capstone Mining for Cementation Mining due to better pay and benefits. He works full-time. The Veteran reported that he had anger issues at his prior job but no reprimands. The Veteran endorsed missing some work due to his mental health at his prior job only. The Veteran also endorsed sobriety for the past four years. As for symptoms, the Veteran endorsed irritability and social isolation. The Veteran also referenced his 2016 inpatient hospitalization. The VA examiner determined that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The VA examiner concluded that Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity. The Board finds that throughout the appellate period, the Veteran's PTSD caused occupational and social impairment in the areas of work, family relations, and mood, and most closely approximated the criteria for a 70 percent rating. Throughout this period, the Veteran demonstrated symptoms of and reported suicidal ideation; social isolation; angry outbursts and irritability; impaired impulse control; near-continuous depression; anxiety; disturbances of motivation and mood, chronic sleep impairment; and difficulty in adapting to stressful circumstances (including a worklike setting). The evidence of record does not support a rating of 100 percent. No VA examiner has opined that the Veteran's symptoms caused total occupational and social impairment. Moreover, the record does not reflect that the Veteran demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. Persistent delusions or hallucinations have not been shown, nor has that Veteran been shown to have gross impairment in thought processes or communication, inappropriate behavior, an inability to perform activities of daily living, persistent danger of hurting self or others, or any of the other markers of total occupational and social impairment due to his service-connected PTSD. Regarding occupational impairment, the Board acknowledges that the Veteran has endorsed some anger outbursts at his job and that he had taken some leave due to his mental health during the period on appeal and that he had some degree of occupational impairment due to his PTSD. However, a finding that the Veteran's service-connected PTSD caused some degree of occupational impairment does not necessitate a finding of total occupational and social impairment as characterized in the General Rating Formula. Here, the evidence reflects that the Veteran has successfully worked full-time throughout the pendency of the appeal with only verbal reprimands. Notably, the Veteran was able to switch jobs with better pay and benefits. The Board finds that there is simply not a showing of psychiatric symptoms that are of similar duration, frequency, and severity that would warrant finding that the Veteran is totally occupationally and socially impaired. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In sum, throughout the appellate period, the Board finds that a rating of 70 percent for the Veteran's PTSD is warranted. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. However, to the extent that the Veteran's claim for an increased initial rating for PTSD is being denied, the preponderance of the evidence weighs against the claim (that is to say, the weight of the evidence is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that service connection for sleep apnea is warranted as the claimed disability was caused or aggravated by his service-connected PTSD. VA medical records reflect provisional diagnoses for sleep apnea. The Veteran has not yet been afforded a VA examination in connection with his service connection claim for sleep apnea. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran's reports attributing sleep apnea to service and to his service-connected PTSD, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of the claim. See McLendon, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a somnologist or another suitably qualified VA medical professional, to determine the nature and etiology of the Veteran's sleep apnea. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should address the following: (a.) Is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that sleep apnea arose during service or is otherwise related to any incident of service? Please explain why or why not. (b.) Is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's sleep apnea was caused by a service-connected disability, to include PTSD, and/or by medication prescribed to treat any of his service-connected disabilities, specifically including, but not limited to, PTSD? (c.) Is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's sleep apnea has been aggravated by a service-connected disability, to include PTSD, and/or by medication prescribed to treat any of his service-connected disabilities, specifically including, but not limited to, PTSD? (d.) The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition, versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability present (i.e., a baseline) before the onset of the aggravation. (e.) Please note that a medical opinion which concludes that a disease is not related to service solely because there is absence of corroborative medical records is inadequate. (f.) A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why this is so, specifically addressing whether the inability to provide an opinion stems from not having sufficient information/evidence or the limits of medical knowledge. M. Bilstein Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.