Citation Nr: 18160455
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-51 909
DATE:	December 27, 2018
ORDER
Entitlement to a 50 percent rating for post-traumatic stress disorder (PTSD), effective October 29, 2012, is granted.
REMANDED
Entitlement to service connection for sleep apnea is remanded.
Entitlement to a rating in excess of 50 percent for PTSD is remanded.
Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded.
Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded.
Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded.
Entitlement to a rating in excess of 10 percent for hypertension is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDING OF FACT
The Veteran’s PTSD has manifest through the particular symptoms listed in the 50 percent rating criteria since the effective date of service connection.
CONCLUSION OF LAW
The criteria for at least a 50 percent rating for PTSD have been met since October 29, 2012.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Agency of Original Jurisdiction (AOJ) has assigned an initial 30 percent rating for PTSD.  PTSD  is rated under Diagnostic Code 9411 in accordance with the General Rating Formula for Mental Disorders.
When determining the appropriate disability evaluation to assign under the General Rating Formula for Mental Disorders, the Board’s primary consideration is the claimant’s symptoms, but it must also make findings as to how those symptoms impact the claimant’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  Nevertheless, all ratings in the General Rating Formula for Mental Disorders are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant’s impairment must be “due to” those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442.
Under the General Rating Formula for Mental Disorders, 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130.
A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.
Although a September 2013 VA examiner assessed the functional impairment resulting from the Veteran’s PTSD as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks, which corresponds to the 30 percent rating criteria, she reported the Veteran’s PTSD was manifest by symptoms of anxiety, suspiciousness, chronic sleep impairment, and disturbances of mood and motivation.  Disturbances of mood and motivation is specifically listed in the 50 percent rating criteria.  Since the Veteran’s symptoms are the primary consideration when determining the appropriate disability evaluation to assign under the General Rating Formula for Mental Disorders, the Board finds at least a 50 percent rating is warranted for PTSD from the effective date of service connection, October 29, 2012.
As will be explained in more detail below, the Board finds a remand of all of the Veteran’s appeals is necessary because Vocational Rehabilitation and Employment (VR&E) records have been associated with the claims file since the appeals were certified to the Board in June 2017.  Since the assignment of 50 percent rating for PTSD only constitutes a partial grant of the full benefit sought on appeal, the Board will remand the initial rating assigned for PTSD for consideration of whether a rating in excess of 50 percent is warranted based on the newly received evidence.  The Board notes its partial grant of an increased 50 percent rating for PTSD is based solely on the evidence previously considered by the AOJ and does not represent an assessment of the newly received evidence or indicate an initial rating in excess of 50 percent for PTSD is not warranted.
REASONS FOR REMAND
As previously noted, the Veteran’s VR&E records were associated with the claims file subsequent to certification of the issues on appeal to the Board in June 2017.  The Veteran has not explicitly waived AOJ consideration of this evidence, and the presumptive waiver provisions of 38 U.S.C. § 7105(e) do not apply to evidence developed by VA.  Thus, the evidence must be referred to the AOJ for initial consideration to ensure the Veteran is afforded due process.  See 38 C.F.R. § 20.1304(c).
The Board will discuss the required development for certain individual issues (as needed) below.
1. Entitlement to service connection for sleep apnea is remanded.
An opinion addressing secondary service connection is inadequate if it does not address both causation and aggravation.  See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (indicating an opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition).  The rationale in the September 2013 VA opinion regarding the Veteran’s service connection claim for sleep apnea is limited to causation.  Thus, a new opinion addressing both causation and aggravation is necessary to make an informed decision on the Veteran’s service connection claim for sleep apnea.
2.  Entitlement to a rating in excess of 50 percent for PTSD is remanded.
3. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded is remanded.
A new examination is necessary regarding the Veteran’s increased rating claim for his service-connected degenerative disc disease of the lumbar spine because the September 2013 VA back examination report does not include all the range of motion testing required by VA regulation or adequately address potential range of motion loss during flare-ups.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017), Correia v. McDonald, 28 Vet. App. 158 (2016).
4. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded is remanded.
5.  Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded.
The appeals of the ratings assigned for radiculopathy of the lower extremities must be remanded because neurological impairment will be assessed in the examination required for the Veteran’s increased rating claim for degenerative disc disease of the lumbar spine.
6. Entitlement to a rating in excess of 10 percent for hypertension is remanded.
7. Entitlement to TDIU is remanded.


The matters are REMANDED for the following action:
1. Schedule the Veteran for a new examination regarding his service connection claim for sleep apnea.
The selected examiner must provide an opinion addressing whether the Veteran’s sleep apnea is at least as likely as not the result of service; or proximately due to, or aggravated by his service-connected disabilities, to include, but not limited to, PTSD.
The secondary service connection opinion must address both causation and aggravation to be deemed adequate.  The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation.
The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so.
The examination report must include a complete rationale for the opinion provided.
2. Schedule the Veteran for a new examination to assess the current functional impairment resulting from his service-connected back disability, to include any associated neurological impairment.
The selected examiner should conduct all indicated tests and studies, to include range of motion testing.  The lumbar spine should be tested in both active and passive motion and in weight-bearing and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.
The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including:  frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.
Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
The examiner should also state whether the Veteran’s service-connected back disability has resulted in incapacitating episodes due to intervertebral disc syndrome and, if so, the duration of the episodes over a twelve-month period. The examiner is advised that an incapacitating episode is defined for rating purposes as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician.
3. Reconsider the issues on appeal, to include an initial rating in excess of 50 percent for PTSD, based on all the evidence of record.
 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel 

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