Citation Nr: A24045461 Decision Date: 08/09/24 Archive Date: 08/09/24 DOCKET NO. 210505-158505 DATE: August 9, 2024 ORDER Service connection for obstructive sleep apnea is granted. A disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's obstructive sleep apnea is attributable to his service-connected PTSD. 2. The Veteran's PTSD is not shown to have been manifested by symptomatology causative of total occupational and social impairment during the period on appeal. 3. The evidence as to whether the Veteran's service-connected PTSD has prevented him from securing or following a substantially gainful occupation is at least in equipoise. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1968 to December 1970, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed to the Board in May 2021, selecting the evidence submission review option. 38 C.F.R. §§ 20.201, 20.202(b)(3). Under the evidence submission review option, the Board may only consider the evidence of record at the time of issuance of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days following the receipt of, the VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). 38 C.F.R. § 20.303. The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the VA Form 10182 was received, or (2) evidence submitted more than 90 days after the VA Form 10182 was received. Id. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claims. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As the Veteran filed his claim for an increased rating on November 7, 2019, the appeal period begins at that time (with consideration of a possible one-year "look back" period). 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). 1. Service connection for sleep apnea is granted. The Veteran seeks to establish service connection for obstructive sleep apnea. He contends that the condition is secondary to his service-connected PTSD. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999) Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 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; 38 C.F.R. § 3.102. An approximate balance of the evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In the May 2020 rating decision on appeal, the AOJ made a favorable finding that the Veteran had been diagnosed with obstructive sleep apnea. The Board is bound by that favorable determination, and it is not in dispute. 38 C.F.R. § 3.104(c). Accordingly, the first element of service connection, as to the presence of a current disability, has been established. The Veteran has also been service connected for PTSD since January 2018, effective from April 26, 2017. As to the nexus, or link, between the Veteran's sleep apnea and his PTSD, he submitted a July 2019 private medical opinion indicating that his sleep apnea was secondary to his PTSD. The provider reviewed the claims file, relied on medical literature, and explained a mechanism of causation in concluding that it was at least as likely as not that the Veteran's sleep apnea was secondary to, and aggravated by, the service-connected disability. In November 2019, the Veteran was afforded an in-person VA examination for purposes of assessing the etiology of his sleep apnea. The examiner offered an unfavorable nexus opinion, finding that the medical literature did not mention PTSD as a cause of or contributor to sleep apnea. The examiner conceded that there had been several articles referencing the presence of sleep apnea in individuals with PTSD, but concluded that there was no medical evidence showing that PTSD actually caused sleep apnea. The examiner did not explicitly address the question of secondary aggravation. Inasmuch as both opinions were based on an accurate understanding of the facts, and articulate reasons for the conclusions reached, the Board finds the opinions equally probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As such, the evidence as to nexus is in relative equipoise. In light of the foregoing, the Board is satisfied that the requirements for an award of service connection have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. 2. A disability rating in excess of 70 percent for PTSD is denied. The Veteran is in receipt of a 70 percent disability rating for PTSD. On appeal, he seeks a higher evaluation. Disability evaluations are determined by the application of a schedule of ratings, which is, in turn, based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). PTSD is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted if the disorder is manifested by 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 work-like setting); and an inability to establish and maintain effective relationships. The highest available schedular rating, 100 percent, is warranted if the disorder is manifested by 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 oneself or others; an intermittent inability to perform the 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 one's own name. 38 C.F.R. § 4.130, DC 9411; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (indicating that the Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation). 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. 38 C.F.R. § 4.126(a). VA 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. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). VA is required to perform a "holistic analysis" in which it "assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder, quantifies the level of occupational social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment." Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Veteran underwent a VA mental health examination in January 2020. The examiner found that the Veteran's disability was manifested by depressed mood; 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; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The examiner found that the Veteran's overall level of occupational and social impairment was best characterized as occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was still married and that he lived in North Carolina where he had "good friends." He also reported being a father to three adult children who he did not speak to often, but described their relationship as "okay," and lived with his stepdaughter and her husband. He also reported a stepson who lived locally and had two children, and he reported a "great" relationship with his stepson. The Veteran submitted a private psychological evaluation dated March 2021. The psychologist noted that the Veteran suffered from daily intrusive memories of trauma he experienced while deployed that often caused anxiousness and depressed mood. The examiner described the Veteran's symptoms as severe and debilitating. The Veteran could become irritable, restless, and anxious, and suffered from poor memory and impaired ability to concentrate. He expressed feelings of self-loathing and worthlessness, guilt, anhedonia, restlessness, loss of interest in other people, indecisiveness, low energy, poor concentration, and poor memory. He also had deficient short-term memory and displayed cognitive deficits that typically preclude employability. He also admitted to ongoing suicidal ideations, but denied current suicidal plans or intent. The psychologist concluded that the Veteran's numerous psychiatric symptoms, including his deficits in cognition, resulted in severe and total occupational and social impairment. Those impairments had significantly affected all of his social interactions, including his friends, marriage, and his other family relationships. The examiner noted that the Veteran had attempted to cope with his psychiatric symptoms through psychotherapy, but that he had been unable to achieve enduring improvement of his psychiatric symptoms. Following review of the record, the Board finds that the evidence is persuasively against the assignment of a rating in excess of 70 percent for PTSD during the period here at issue. Simply put, the evidence does not establish that the Veteran's PTSD was at that time causative of total occupational and social impairment. The record shows, for example, that the Veteran was married and had a good relationship with his stepson during the period on appeal. In the absence of evidence demonstrating that he was totally impaired from a social standpoint, a 100 percent schedular rating cannot be granted. As the evidence is persuasively against the Veteran's claim, the benefit-of-the-doubt rule is inapplicable. The appeal of this issue must be denied. 3. A TDIU is granted. A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In the present case, the Board finds that the Veteran meets the threshold requirements for consideration of a TDIU on a schedular basis throughout the period on appeal. As noted above, the Veteran's service-connected PTSD has been rated as 70 percent disabling since April 26, 2017. As such, the threshold requirements for a schedular award of a TDIU have been satisfied. The Board finds, further, that the evidence supports an award of a TDIU. The evidence reflects that the Veteran has two years of college education, and that he has not had any substantive work experience since approximately April 2018. As noted above, a psychologist concluded in March 2021, following an examination of the Veteran and review of his medical history, that the Veteran's PTSD was severe enough to prevent employment and that his functional capacities had continued to deteriorate over the past few years. The final determination with respect to a veteran's entitlement to a TDIU is an adjudicatory, and not a medical, function. Nevertheless, the findings reflected in the March 2021 report are highly probative. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran's description of the functional effects of his service-connected psychiatric impairment as it relates to his level of education and prior occupational experience, the Board is persuaded that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD during the period on appeal. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.3. A TDIU is therefore granted. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the award. That matter will be addressed by the AOJ when the award is effectuated. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.