Citation Nr: 1749054	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-03 356A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to an initial rating in excess of 30 percent prior to November 30, 2015, and a rating in excess of 50 percent from November 30, 2015, for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for a skin disorder.

4.  Entitlement to service connection for a left leg disorder, to include arthritis.

5.  Entitlement to service connection for a left hip disorder.


REPRESENTATION

Appellant represented by:	Ronald Sykstus, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel


INTRODUCTION

The Veteran had honorable active duty service from August 1967 to April 1969.

This appeal to the Board of Veterans' Appeals (Board) arose from January 2012 and May 2013 rating decisions. 

In the January 2012 rating decision, the RO granted service connection for PTSD and assigned an initial. 30 percent rating, effective September 12, 2011.  In April 2012, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. A statement of the case (SOC) was issued in January 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2013.

In the May 2013 rating decision, the RO denied the Veteran's petition to reopen his previously denied claims for service connection for a skin disorder and for left femur fracture residual and calcific bursitis of the left hip, as well as denied service connection for left leg disorder and sleep apnea.  In June 2013, the Veteran filed an NOD with respect to the claims denied.  An SOC was issued in June 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2014.

Because the appeal involves disagreement with the initial rating assigned following the award of service connection for PTSD, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126   (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).

In January 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In June 2015, the Board reopened the claims for service connection for a skin disorder and a left hip disorder.  The Board remanded those reopened claims, along with the claims for service connection for sleep apnea and a left leg disorder, and the increased rating claim for PTSD to the agency of original jurisdiction (AOJ).

In a May 2016 rating decision, the rating for PTSD was increased to 50 percent, effective November 30, 2015.  Although the AOJ has assigned a higher rating for PTSD during the pendency of this appeal, as the Veteran was not granted the maximum available benefit (which he is presumed to seek) either before or since November 30, 2015,  the claim for a higher rating (now characterized to reflect the staged ratings assigned) remains viable on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

While the Veteran previously had a paper claims file, this appeal has been processed utilizing the paperless, electronic Veterans Benefit Management System (VBMS) and Virtual VA claims processing system.   All records have been reviewed.

The Board's decisions addressing the higher ratings claim for PTSD and the service connection claim for sleep apnea are set forth below.  The remaining claims on appeal are addressed in the Remand following the Order; these matters are, again, being remanded to the AOJ.  VA will notify the Veteran when further action, on his part, is required.




FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished.

2.  The weight of the evidence is against a finding that the Veteran has, or at any point pertinent to the current claim has had, obstructive sleep apnea.

3.  Since the September 12, 2011 effective date of the award of service connection, the Veteran's PTSD symptoms have primarily included depression, trouble falling and staying asleep, irritability and outbursts of anger, exaggerated startle response, trouble concentrating, hypervigilance, panic attacks more than once per week, difficulty to establish and maintain relationships with family and friends, difficulty in adapting to work and stressful circumstances, anxiety, and suspiciousness.  Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest occupational and social impairment with reduced reliability and productivity.


CONCLUSIONS OF LAW

1.  The criteria for service connection for sleep apnea are not met.  38 U.S.C.A. § 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.159, 3.303 (2016).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial  50 percent rating for  PTSD, from September 12, 2011 to November 30, 2015, are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411 (2016).

3.  The criteria for a rating in excess of 50 percent for PTSD are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Code 9411 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).

After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004), and  Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id. 

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

As the current appeal with respect to evaluation of PTSD emanated from the Veteran's disagreement with the initial rating assigned following the award of service connection, no additional VCAA notice letter notice for the downstream higher rating issues was required under 38 U.S.C.A. § 5103A .  See VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)).  Nonetheless,  the January 2013 SOC set forth the criteria for a higher rating for PTSD (the timing and form of which suffices, in part, for Dingess/Hartman).

As regards the sleep apnea service connection claim, a January 2013 pre-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of a service connection claim, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  This letter also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect).   

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to each matter herein decided.  Pertinent medical evidence associated with the claims file consists of service treatment records, VA medical records, and the reports of various VA examinations.  Also of record and considered in connection with claim herein decided is the transcript of the Veteran's Board hearing, along with various written statements provided by the Veteran and by his representative, on his behalf.  The Board finds that no additional AOJ action to further develop the record in connection with either claim herein decided, prior to appellate consideration, is required.

In particular, the Board notes that the Veteran has been afforded adequate VA examinations in January 2012 and January 2016, the reports of which reflect consideration of all relevant evidence of record and contain sufficient detail upon which to rate the PTSD here at issue. 

As for the Veteran's January 2015 Board hearing, during the hearing, the undersigned Veterans Law Judge enumerated the issues on appeal-to include those herein decided.  See Hearing Transcript (T.) at p. 2.  Also, information was elicited regarding the current symptoms of his PTSD, the history of any sleep apnea and whether there were any outstanding medical records available.  See T. at p. 3-15.  Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, on these facts, such omission was not prejudicial to him, inasmuch as, following the hearing, the claims were remanded for additional development, as a result of which additional evidence was added to the record.  The hearing was legally sufficient.  See 38 C.F.R. § 3.103(c)(2) (2016);  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

With respect to the Board's June 2015 remand, it is noted that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  

The Board remanded the instant claims to obtain updated VA treatment records, afford the Veteran a contemporaneous VA examination detailing the symptoms related to PTSD, afford the Veteran a VA examination detailing the etiology of any sleep apnea, and readjudicate the case in an SSOC.  Thereafter, VA treatment records dated through May 2016 were obtained, the Veteran was afforded VA examinations in January 2016 where PTSD symptoms were identified and where after a full examination the examiner determined that the Veteran did not have sleep apnea.  Thereafter, the claims were readjudicated in an May 2016 SSOC.  Although the AOJ sent the letter inviting the Veteran to provide, or provide authorization to obtain, any additional pertinent evidence, as directed, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained.  

Accordingly, the Board finds that there has been substantial compliance with the June 2015 Board remand directives such that no further action is necessary in this regard.  Id.; see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999).

In summary, the duties imposed by the VCAA have been considered and satisfied.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim herein decided.  As such, the Veteran is not prejudiced by the Board proceeding to a decision on each claim herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Service Connection

The Veteran contends that he suffers from obstructive sleep apnea and a heart condition, to include coronary artery disease and hypertension that began during service and that these conditions have continued since that time.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

To establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1,8 (1999). 

A claim for service connection, requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223,225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  The requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  However when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1.  See also Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991).  The Board notes that a symptom such as pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

VA treatment records note that the Veteran has trouble sleeping.  These records are in the context of mental health treatment.  No VA treatment record notes any sleep study or diagnosis of sleep apnea.

During the January 2015 Board hearing, the Veteran reported that he was diagnosed with sleep apnea 10 to 15 years prior.  He stated that he had a CPAP machine.

The Veteran was afforded a VA examination in January 2016, at which time  the examiner reviewed the Veteran's treatment records.  The Veteran reported that he was told that "he might have mild sleep apnea" about 15 to 20 years prior, but he never went for a sleep study.  The Veteran reported never having a sleep study.  The Veteran reported no treatment with a CPAP machine.  The examiner stated that the Veteran did not have any findings, signs or symptoms attributable to sleep apnea.  The examiner stated that the Veteran did not have sleep apnea, nor did the Veteran ever have sleep apnea.  The examiner stated that the Veteran has PTSD which likely accounts for his insomnia.  The Board accepts this opinion as probative evidence on the question of current disability, based as it was examination of the Veteran and consideration of his documented  history and assertions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Notably, there is no contrary, competent evidence establishing that the Veteran, in fact, has a current diagnosis of sleep apnea.

During the January 2015 Board hearing, the Veteran testified that he had been  diagnosed with sleep apnea 10 to 15 years earlier.  However, during the January 2016 VA examination, the Veteran clarified that he was told that he might have mild sleep apnea.  Notably, while the Veteran can certainly report what a doctor told him, such reports, in and of themselves, do not constitute competent medical evidence of a diagnosis.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  

Moreover, the Veteran has provided inconsistent statements regarding whether he was actually diagnosed with sleep apnea.  Indeed, at first he stated that he was diagnosed with such.  Then, he stated that he was told he might have sleep apnea.  These inconsistent statements render his accounts of what a physician purportedly told him 10 to 15 years ago, not credible.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony).  Notably, even if the Veteran had been told that he had sleep apnea 10 years prior, as now alleged, such would have been long before his claim for service connection and does not evidence a "current" disability for the purpose of service connection.  See McClain, supra; Romanowsky, supra.  

Furthermore, to the extent that the Veteran himself asserts that he has sleep apnea, such a diagnosis is a complex medical matter that falls outside the realm of common knowledge of a layperson.  See Jandreau, 492 F.3d at 1377, n. 4 (providing that lay persons are not competent to diagnose cancer).  As any such lay assertions in this regard are not competent, they have no probative value in this appeal.  

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110.  Thus, where, as here, competent, probative evidence establishes that, fundamentally, the Veteran not have the disability for which service connection is sought, there can be no valid claim for service connection.  See Brammer, supra.  See also Shedden, supra; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

For all the foregoing reasons, the Board finds that the claim for service connection for sleep apnea must be denied.  In reaching this conclusion,  the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. 53-56 (1990).

III.  Higher Ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

A veteran's entire history is to be considered when making disability ratings.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, in connection with a higher rating claim, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Fenderson, supra (for initial rating claims).  Here, the Veteran has been assigned staged ratings for his PTSD, as reflected above.  Thus, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted.

The ratings for the Veteran's service-connected  psychiatric disability were assigned under DC 9411, for PTSD. However, psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula.  See 38 C.F.R. § 4.130.

Under the General Rating Formula, a 30 percent rating contemplates 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, mild memory loss (such as forgetting names, directions, recent events).  Id. 

A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent 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; 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); inability to establish and maintain effective relationships.  Id. 

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. 

As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130  is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'"  Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.

When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination."  38 C.F.R. § 4.126(a). 

Psychiatric examinations frequently include assignment of a GAF score.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a).  [Parenthetically, the Board notes that the, revised DSM-5, which among other things, eliminates GAF scores, applies to certified to the Board after August 4, 2014.  See 79 Fed. Reg. 45, 093 (Aug, 4, 2014)).]

The Veteran was afforded a VA examination in January 2012.  There, a GAF score of 58 was assigned.  The examiner stated that PTSD symptoms result 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.  Symptoms noted were depressed mood, anxiety, chronic sleep impairment and mild memory loss.  The examiner stated that the Veteran was appropriately dressed and speech was within normal limits.  The Veteran appeared restless.  He was oriented in all spheres.  There were no active suicidal ideations.  The Veteran stated that he would not hurt his family by hurting himself.  Sleep disturbances occurring three to four nights per week were described.  There was no history of panic attacks.  The Veteran noted that he occupied himself with his busy work schedule, but has since retired.  He noted nightmares, some social isolation and avoidance symptoms.  The examiner described PTSD symptoms as moderate and chronic.

During the e January 2015 Board hearing, the Veteran reported panic attacks four to five times per week.  He also reported having a poor memory.  The Veteran testified that he does not like to be around large crowds.

The Veteran was afforded a VA examination in January 2016, at which time the examiner found that his t PTSD symptoms cause occupational and social impairment with reduced reliability and productivity.  The Veteran reported that he lived with his wife of 47 years.  He noted that his marriage is good, but PTSD symptoms cause stress.  The Veteran reported having relationships with his children and grandchildren.  He reported having a friend that he sees occasionally.  The Veteran stated that he likes to fish.  He stated that he stopped working after 35 years due to back and shoulder problems.  The examiner stated that it does not appear that PTSD symptoms caused impairment while working.  Rather, it appeared that work was a coping mechanism, and the Veteran has more problems with PTSD after his retirement.  The Veteran's wife explained that once their granddaughter was attempting to leave in her car and the Veteran rammed his car into her car several times.  Increased anger and outbursts were noted.  Symptoms noted were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, and difficulty in establishing and maintaining relationships.  The Veteran reported sleeping about six hours per night, with nightmares two to three times per week.  The examiner noted that the Veteran may have difficulty with functioning in jobs with high emotional, cognitive or social demands, or significant interaction with the public.  Additionally, problems with anxiety and hypervigilance were noted, as were memory problems.

VA treatment records note treatment for PTSD.  Symptoms are largely congruent with those described at the VA examinations.  Pertinent here, a December 2015 record notes a GAF score of 55.  Additionally, the Veteran sought inpatient treatment in November 2015.  He reported an inability to sleep and severe nightmares, along with frequent panic attacks.  The Veteran reported hearing voices and drinking alcohol heavily.  The Veteran's wife reported that he grabbed his gun one night and walked around the house with it.

Thus, the Board finds that, since the September 12, 2011, effective date of the award of service connection, the Veteran's PTSD symptoms have primarily included depression, trouble falling and staying asleep, irritability and outbursts of anger, exaggerated startle response, panic attacks more than once per week, trouble concentrating, hypervigilance, difficulty to establish and maintain relationships with family and friends, difficulty in adapting to work and stressful circumstances, anxiety, and suspiciousness.  Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest occupational and social impairment with reduced reliability and productivity-the level of impairment contemplated in the 50 percent rating.

Notably, the assigned GAF scores of 58 (in January 2012) and 55 (in December 2015) are consistent with no more than a 50 percent rating.  Under the DSM-IV, GAF scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning.  Here, the Veteran's symptoms most closely approximate the symptoms delineated in the criteria for a 50 percent rating under the General Rating Formula. While the Veteran has had difficulty maintaining effective work and social relationships, and has exhibited memory problems, he has maintained a mostly good relationship with his family and has not, for the most part, experienced impairments in judgment or abstract thinking.

The Veteran has not been shown to experience the vast majority of symptoms listed in the criteria for a 70 percent rating as examples of those of the type and extent, frequency, and/or severity to result in major deficiencies in most areas.  While the Veteran's wife described an incident when the Veteran rammed his car into his daughter's automobile-indicating some impaired impulse control-that single episode appears isolated.  Indeed, the Veteran reported a largely positive relationship with his wife of several decades, children and grandchildren.  Additionally, during  the 2012 VA examination the Veteran reported having a friend with whom he maintains contact.  Hence, the Board cannot find that he has experienced symptoms of the type and extent, frequency and/or severity (as appropriate) to warrant at least a 70 percent rating.  As the criteria for the next higher, 70 percent rating are not met, it logically follows that the criteria for the maximum, 100 percent rating (for symptoms resulting in total occupational and social impairment) likewise are not met.

In sum, the Board finds that, since the September 11, 2011, effective date of the award of service connection, the Veteran's PTSD has resulted in psychiatric symptoms of the type and extent, frequency, and/or severity, as appropriate, to indicate the level of impairment contemplated in the schedular 50 percent, but no higher, rating.

In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating.  See Vazquez-Claudio and Mauerhan, supra.  The Board has not required such symptoms in affording the Veteran the benefit of the doubt and awarding the 50 percent rating from September 11, 2011.  However, as explained above, the Board has also found that that the evidence of record simply does not show that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate), to result in the occupational and social impairment with deficiencies in most areas enquired for a 70 percent rating, at any relevant time.

The above determinations are based upon application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that, at no pertinent point has the Veteran's service-connected PTSD reflected so exceptional or so unusual a picture as to render inadequate the applicable schedular criteria for evaluating PTSD, and to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalizations).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.

In this case, the Board finds that the schedular criteria are adequate to rate the Veteran's service-connected PTSD at all pertinent points.  The rating schedule fully contemplates the type, extent, and frequency or severity of described symptomatology indicative of no more than occupational and social impairment with reduced reliability and productivity.  Although, as noted, all psychiatric symptoms manifested are not listed among those identified as indicative of particular ratings, the Board has considered the full extent of his psychiatric impairment in evaluating the disability.  The rating schedule provides for higher ratings based on more significant impairment which, as explained above, is not shown here.  Notably, there is no indication or argument that the applicable criteria are otherwise inadequate to rate the disability. 

Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected PTSD.  As such, the Board finds that the rating schedule is adequate to evaluate each of these disabilities, and the Board need not proceed to consider the second factor, viz., whether there are attendant related factors such as marked interference with employment or frequent periods of hospitalization.

The Board further notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362   (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  Here, however, the Veteran's PTSD is appropriately rated as a single disability.  Moreover, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016)."  As such, any  further discussion of the holding in Johnson is unnecessary, 

Under these circumstances, the Board concludes that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met, and that referral of the claim for extra-schedular consideration is not warranted.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

As a final point, the Board notes the matter of the Veteran's entitlement to a total disability rating based on individual unemployability (TDIU) may be a component of a claim for higher rating, whether expressly raised by a Veteran or reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In the instant case, however, there is no evidence or argument that the Veteran's PTSD has actually or effectively rendered him unable to obtain or retain substantially gainful employment at any pertinent point.   In fact, the Veteran has been employed, and as discussed above, the January 2016 VA examiner stated that work was a coping mechanism, which actually alleviated some PTSD symptoms.  Under these circumstances, the Board finds that no claim for a TDIU due to PTSD has been raised in connection with the current claim, and need not be addressed herein.

For all of the foregoing reasons, the Board finds that, resolving all reasonable doubt in the Veteran's favor, the evidence supports assignment of an initial, 50 percent rating for PTSD, effective September 12, 2011; but that the preponderance of the evidence is against assignment of any higher rating for the disability \ at any pertinent point.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert,  1 Vet. App. at , 53-56.


ORDER

Service connection for sleep apnea is denied.

An initial 50 percent rating for PTSD, from September 12, 2011 through March 30, 2015, is granted, subject to the legal authority governing the payment of VA compensation.

A rating in excess of 50 percent for PTSD is denied.


REMAND

Unfortunately, the Board finds that further action on remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters.

In June 2015, the Board remanded the claims for service connection for a left leg disorder, left hip disorder and a skin disability.  The purpose of that remand, inter alia, was to afford the Veteran VA examinations to determine the nature and etiology of those disabilities.

A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall, supra.

As to the skin disorder, the examiner was to list all of the Veteran's skin diagnoses at any time pertinent to the current claim for service connection.  Then, the examiner was to opine as to the likelihood that any such disorder had its onset in service or is otherwise related to service, to include skin rashes therein.  The examiner was also to consider and discuss the Veteran's competent assertions of symptomatology, to include as reflected in the February 1970 VA examination report.

The Veteran was afforded a VA examination in January 2016.  There, the examiner noted tinea versicolor in 1970 on the shoulder, back and arms. The examiner noted that the rash was not shown on the current examination.  Furuncle was noted in 2011 on the upper back.  The examiner opined that it was less likely than not that any skin disability was related to service or had its onset therein.  As rationale, the examiner stated that the Veteran was treated for tinea versicolor and a cystic lesion on his back, but those conditions were no longer present.  The examiner stated that the Veteran reported that he self-treats the two to three papules on his forehead, but that condition is not noted in the service treatment records.  The examiner also stated that the Veteran has not been seen for any skin problems recently by a treatment provided.

The Board finds this opinion inadequate for several reasons.  While the examiner noted a furuncle was diagnosed in 2011, the examiner's statement that it was no longer present does not prohibit the award of service connection, nor is it a sufficient rationale to support a finding that such is not related to service.  See McClain, 21 Vet. App. 319, 321 (2007).  Additionally, the examiner noted two to three papules on his forehead.  Regarding the papules, the examiner's sole rationale support her opinion was that that condition was not noted in the service treatment records.  However, the examiner may not rely solely on a lack of evidence of such in the Veteran's service treatment records as rationale for her opinion.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). 

As to the left leg and left hip disorders, in the June 2015 remand, the Board noted that the Veteran's left hip and femur disorders may have preexisted his period of service and may have been aggravated therein.  Thus, the Board requested that the Veteran be afforded a VA examination.  The examiner was to identify all disabilities affecting the Veteran's left leg and hip.  For each diagnosed disability, the examiner was to opine as to whether the disability clearly and unmistakably preexisted service and, if so, whether such disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during service.  The examiner was to discuss the reported of pain documented in the May 1968 service treatment records.  If it was determined that a disability did not clearly and unmistakably preexist service, the examiner was to opine as to whether it was at least as likely as not that the disability was related to service or had its onset therein.

At the January 2016 VA examination, the Veteran was diagnosed with left knee strain and left hip arthritis.  Initially, the examiner stated that it was less likely than not that the claimed disability was related to service.  As rationale, the examiner stated that the Veteran's statements were credible, but there was no objective evidence of an in-service fall or injury.  The examiner stated that the Veteran had a temporary aggravation of his pre-existing condition, which is normal for this type of injury and he is not currently receiving medical care for a left hip disorder.

At this juncture, the Board notes that it is not entirely clear what disability the examiner is referring to-either the diagnosed left knee strain or left hip arthritis.  Additionally, it is not clearly why the examiner is discussing whether a disability was pre-existing or aggravated in the context of this opinion.  Indeed, the opinion refers to whether the disability is related to service.

Nonetheless, the examiner went on to state that the Veteran's claimed disability, which clearly and unmistakably preexisted service,  was not aggravated beyond the normal progression by an in-service event, injury or illness.  As rationale, the examiner noted a left femur fracture that occurred at age 16, before service.  The examiner noted few problems until service, when the Veteran complained of pain due to hardware, but those complaints represented a temporary aggravation.  The examiner noted that the conditions followed the natural course during active duty and his hardware was removed in 1970 or 1971 due to pain during basketball.  The examiner stated that the Veteran's complaints of left leg hip and leg pain are consistent with lumbar spine degenerative disc disease with stenosis and radicular symptoms.  The examiner stated that current left leg symptoms are likely a combination of his pre-military left leg fracture and post-military back condition.  The examiner stated that current imaging reveals mild degenerative joint disease of the left hip, consistent with age.  However, there was no evidence of left knee arthritis.

Again, it is entirely unclear what disabilities the examiner is asserting clearly and unmistakably preexisted service and were not aggravated therein.  Indeed, there is no discussion of the diagnosed left knee strain and the only discussion of left hip arthritis is that such is consistent with age.  It is not readily apparent that the examiner was asserting that either disability clearly and unmistakably pre-existed service.  Indeed, the only rationale stated pertaining to the Veteran's left knee is that he does not have any left knee arthritis.  Further, the examiner also noted that the Veteran experiences radicular symptoms in his left leg.  The examiner did not address whether such disability had any relationship to service.  

Under these circumstances, the Board concludes that substantial compliance with the June 2015 remand directives has not been achieved.  See D'Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, further remand of these matters to obtain the previously-requested medical opinions is required.  See Stegall, supra.  As regards the claim for service connection for a skin disorder, the January 2016 VA examiner did not offer an opinion as to the etiology of furuncles.  Further, the sole rationale for concluding that papules were not related to service was a lack of such in the Veteran's service treatment records.  See Dalton, supra.  As regards the left leg and left hip claims, the examiner provided opinions that unspecified disabilities were not related to service, clearly and unmistakably preexisted service and were not aggravated therein.  The examiner did not specify which disabilities she was referring for each opinion.  For all of the above reasons, further remand of these matters to obtain the previously-requested medical opinions is necessary.

The Veteran is hereby advised that the failure to report for any scheduled examination(s), without good cause, may well result in denial of his claims.  See 38 C.F.R. § 3.655 (2016).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member.

Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  The AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records.

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2016).

The actions identified herein are consistent with the duties imposed by the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal.

Accordingly, these matters are hereby REMANDED for the following action:

1.  Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, current authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) records.

 Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

2.  After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange to obtain from the January 2016 VA examiner an addendum opinion addressing the etiology of the Veteran's skin disorder(s).

If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (to the extent possible).

Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion.

The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions.

If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail. 

For each identified skin disability manifested by the Veteran at any time pertinent to January 2012 claim for service connection (to include, but not necessarily limited to, furuncle and papules of the forehead)-even  if now asymptomatic or resolved-the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically-related to the Veteran's active service-to particularly y include skin rashes therein. 

In addressing the above, the physician must consider and discuss all pertinent lay and medical evidence of record, including the Veteran's competent lay statements.

In rendering the requested opinion, the physician should specifically consider and discuss all in and post-service medical and other objective evidence, as well as the Veteran's competent assertions as to onset and continuity of symptoms, to include as reflected in the February 1970 VA examination report.  If lay assertions in any regard are discounted, the examiner  should clearly so state, and explain why.

All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided.

3.  Also, after all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange to obtain from the January 2016 VA examiner an addendum opinion addressing the etiology of the Veteran's left hip and leg disorder(s).

If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (to the extent possible).

Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion.

The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions.

If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail.

The examiner should clearly identify all current disability(ies) affecting the Veteran's left leg and left hip.

Then, for each diagnosed disability (to include, but not necessarily limited to left hip arthritis, left knee strain, and left leg radiculopathy), the examiner should provide an opinion, consistent with sound medical principles, as to whether: (1) the disability clearly and unmistakably existed prior to service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service.  In rendering this opinion, the examiner should consider and discuss, in particular, the reports of pain documented in the May 1968 service treatment records.

If the examiner determines that a left leg and/or left disorder (to include, but not necessarily limited to left hip arthritis, left knee strain, left leg radiculopathy) did not clearly and unmistakably exist prior to service, the examiner is to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its onset in, or was otherwise incurred during the Veteran's military service, to include an alleged fall therein.

If the examiner determines that current left leg disability is medically related to service, but current left hip disability is not, the examiner should also opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the left hip disability (1) was caused, or (2) is aggravated (worsened beyond natural progression) by service- connected left leg disability.

In rendering each requested opinion, the examiner must consider and discuss all pertinent in- and post service and other objective evidence objective evidence of record, as well as competent lay assertions of injury and as to onset and continuity of symptoms.  If lay assertions in any regard are discounted, the  examiner should clearly so state, and explain why.

All examination findings, along with complete, clearly-stated rationale for the conclusions reached, must be provided

4.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall, supra.

5.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal in light of all pertinent evidence (to particularly include all evidence added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority.

6.  If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his attorney an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit(s) requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s