Citation Nr: 1802650 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-38 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an initial disability rating for anxiety disorder, currently rated as 10 percent prior to July 9, 2010, as 30 percent prior to November 3, 2011, as 50 percent prior to December 2, 2015, and as 70 percent thereafter. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to January 1996 and from January 2007 to February 2008. He was awarded two National Defense Service Medals, the Southwest Asia Service Medal with two Bronze Stars, two Kuwait Liberation Medals (Kuwait and Saudi Arabia), and the War on Terrorism Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008 and June 2009 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Board, in pertinent part, denied the Veteran's claim for service connection for sleep apnea and denied a claim for a higher rating for a left knee disability, and remanded the issue of higher initial ratings for anxiety disorder. The Veteran appealed the Board's October 2014 denial of service connection for sleep apnea and the denial of a higher rating for a left knee disability to the United States Court of Appeals for Veterans Claims (Court). In an August 2016 Memorandum Decision (Decision), the Court affirmed the part of the October 2014 Board decision that denied a higher initial rating for a left knee disability and vacated the Board's October 2014 decision insofar as it pertained to the Veteran's claim for service connection for sleep apnea and remanded the matter for further development and readjudication consistent with the Decision. In May 2017, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In his August 2016 substantive appeal for a higher initial rating for anxiety disorder, the Veteran requested to participate in a Board hearing at a local VA office. In a July 2017 written statement, the Veteran, through his representative, withdrew his request for a hearing. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(e). In an August 2016 rating decision, the RO granted service connection for Morton's neuroma of the left foot, assigning a rating of 10 percent, effective October 28, 2011. To this date, the Veteran has not perfected his appeal of his initial rating assignment. As it has been more than 60 days since the issuance of the August 2017 SOC, the Board does not have jurisdiction over the claims, as they have not been appealed. See 38 C.F.R. 20.302(b). The Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to those issues. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). FINDINGS OF FACT 1. The Veteran's sleep apnea had its onset during active service. 2. Prior to July 9, 2010, the Veteran's anxiety disorder was manifested by occupational and social impairment due to mild and transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. It was not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From July 9, 2010 to November 3, 2011, the Veteran's anxiety disorder was manifested by occupational and social impairment with reduced reliability and productivity. It was not manifested by occupational and social impairment with deficiencies in most areas and was not productive of total social and occupational impairment. 4. From November 3, 2011 to December 2, 2015, the Veteran's anxiety disorder was manifested by occupational and social impairment in the areas of work, family relations, and mood, but was not productive of total social and occupational impairment. 5. Since December 2, 2015, the Veteran's anxiety disorder has been manifested by occupational and social impairment in the areas of work, family relations, and mood, but was not productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 2. Prior to July 9, 2010, the criteria for a rating higher than 10 percent for service-connected anxiety disorder were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9499-9413 (2017). 3. From July 9, 2010 to November 3, 2011, the criteria for an increased rating of 50 percent, but no higher, for service-connected anxiety disorder were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9499-9413 (2017). 4. Since November 3, 2011, the criteria for an increased rating of 70 percent, but no higher, for service-connected anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9499-9413 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea which he asserts began during his most recent period of active service, from January 2007 to February 2008. In his March 2009 claim, the Veteran reported that he was mobilized to active duty in January 2007 and began training for deployment to Iraq. He further stated that he had trouble sleeping in service, which he had attributed to increased stress due to his return to military life or his anxiety. The Veteran reports that he continued to have difficulty with sleep after he was discharged from service and his physician recommended that he undergo sleep studies. He asserts that his sleep apnea symptoms date back to his February 2007 training at Fort Jackson, where he was housed in open bay barracks with approximately 25 other service members. The Veteran states that others told him he had severe snoring problems and that he would stop breathing for a few seconds while asleep. He also reports that he felt tired during training. When he was stationed in Norfolk, another fellow service member also told the Veteran that he snored and would stop breathing in his sleep. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). Service treatment records do not document complaints of sleep disturbance or treatment for sleep apnea. Records dated in February 2007, April 2007, June 2007, and October 2007 do indicate that the Veteran was 6 feet tall and weighed 230 pounds with a body mass index (BMI) of 31.19, which is in the "obese" range as determined by the National Institutes of Health standards. Post-service treatment records show that the Veteran weighed 245 pounds in July 2008. He also complained of teeth grinding at night to his physician who referred him for a sleep study. During the November 2008 polysomnographic study, the technician observed that the Veteran had a sleep onset of 11 minutes but had difficulty maintaining sleep. The Veteran reported he could not get comfortable. Respiratory events were seen towards the end of the study when the Veteran was in REM. Loud snoring was also heard. The technician noted the Veteran had a sleep efficiency of 64 percent. The Veteran was diagnosed with mild obstructive sleep apnea with significant supine and REM events. He was advised to return for a PAP titration study, which he underwent in January 2009. His obstructive sleep apnea has been treated via CPAP machine as recently as 2015. At the April 2009 VA examination, the Veteran reported that starting in February 2007 he began to grind his teeth, snore, and stop breathing on and off throughout the night. He also stated he has been using a CPAP machine since January 2009. The examiner diagnosed him with sleep apnea. In support of the Veteran's claim, his fellow service members submitted statements in May 2009 attesting to the Veteran's loud snoring and difficulty breathing when asleep. In May 2009, the Veteran's colleague at the Roanoke County Police also reported that he would snore and intermittently appear to stop breathing when he visited the Veteran in July 2008. A VA medical opinion was provided in August 2010. The reviewer concluded that there is no medical likelihood that the Veteran's sleep apnea manifested during his military service. The reviewer explained that the Veteran did not report symptoms of sleep apnea during interactions with military health care providers and that there is no sleep study of record during military service. He also stated that the Veteran gained a significant amount of weight after service until March 2010. The reviewer further reasoned that the Veteran's sleep apnea is of the obstructive type and not the central type and that this obstruction was due to his weight. The reviewer elaborated that snoring is not diagnostic of sleep apnea and despite snoring in service, this was not indicative of obstructive sleep apnea. He noted the Veteran has a long, soft palate that would result in snoring. The reviewer concluded that it would be mere speculation to find that to say obstructive sleep apnea existed during military service at the weight the Veteran had during active duty compared to the higher weight he had at the time of the November 2008 sleep study, as there was no sleep study performed in service. In August 2016, the Court of Appeals for Veterans Claims found that the August 2010 VA medical opinion is inadequate. The Court indicated that the opinion did not note the Veteran's weight at the time of his separation from service or acknowledge that his BMI was already in the obese range approximately four months before he left service. The opinion also did not state the Veteran's weight during service or at the time of his official diagnosis of sleep apnea in November 2008 nine months after separation. Pursuant to the May 2017 Board remand, another VA medical opinion was provided in August 2017. The examiner concluded that it was less likely than not that sleep apnea had its onset in or was otherwise medically related to service. He reasoned that it is more likely than not that sleep apnea is related to post-service weight gain. The examiner further explained that current medical literature supports that obesity is the strongest risk factor for sleep apnea and evidence in post-service records supports clinically significant weight gain. The Veteran has further risk factors of obesity, neck circumference, and gender. However, similar to the August 2010 VA medical opinion, this opinion did not address how the Veteran's obesity in service may relate to his VA sleep apnea diagnosis nine months after separation from service. Due to the inadequacy of the opinion, the Board sought a VHA expert medical opinion from a somnologist in September 2017, and the opinion was provided in November 2017. The November 2017 VHA somnologist opined that it is at least as likely as not that the Veteran had obstructive sleep apnea during service. She explained that the strongest risk factor for obstructive sleep apnea is obesity. The prevalence of obstructive sleep apnea progressively increases as the BMI and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. She further referenced a May 2010 medical report which noted that in a population-based study of over 1000 adults who underwent polysomnography, moderate to severe obstructive sleep apnea was present in 11 percent of men who were normal weight, 21 percent of those who were overweight (BMI 25 to 30 kg/m2), and 63 percent of those who were obese (BMI over 30 kg/m2). The mean age was 42 +/-14 years suggesting an age range of 28-56 in this study. The Veteran was age 28 at the time of his polysomnography testing so within the age range in this study. Because at the time of the Veteran's service he was 6 feet tall, weighed 230 pounds, and had a BMI of 31.2, his BMI would have put him at risk for obstructive sleep apnea. She explained that in the study mentioned above, 63 percent of patients with a BMI over 30, such like the Veteran both during and after military service, had obstructive sleep apnea, suggesting that it is more likely than not that the Veteran had obstructive sleep apnea during military service. Furthermore, the VHA somnologist reasoned that extrapolating a STOP-Bang score for the Veteran during his time in service and based on the statements from his peers, he would have a positive screen for obstructive sleep apnea. She explained that the STOP-Bang questionnaire is an eight-item survey that incorporates information on snoring, tiredness, observed apneas, blood pressure, BMI, age, neck circumference, and gender. A score of three or higher has a sensitivity and specificity of 84 and 56 percent for the diagnosis of obstructive sleep apnea using an apnea-hypopnea index (AHI) threshold of more than 5 events per hour, and a sensitivity and specificity of 93 and 43 percent for an AHI of more than 15. The VHA somnologist determined that the Veteran had at least three positive answers with snoring, observed apnea, and male gender. After review of the record, the Board finds that service connection for sleep apnea is warranted. Here, the Board finds the Veteran's reports of sleep apnea symptoms, and statements by his fellow service members of observed apneas both competent and credible, especially given the Veteran's diagnosis of obstructive sleep apnea nine months after his separation from service. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In addressing the competent evidence of record, the Board finds that the positive opinion of the November 2017 VHA expert, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. Her conclusion is supported by the medical evidence of record, which includes service treatment records documenting obesity during service, post-service treatment records documenting treatment for obstructive sleep apnea, and findings that the accepted medical literature indicates that obstructive sleep apnea was present in 63 percent of patients with a BMI of more than 30 and that the Veteran would have had a positive STOP screen for obstructive sleep apnea during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. The Board accordingly finds that the evidence of record for and against the claim is at least in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for sleep apnea is granted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased Initial Rating - Anxiety Disorder Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran's anxiety disorder is currently rated as 10 percent disabling from February 8, 2008 to July 9, 2010; 30 percent disabling from July 9, 2010 to November 3, 2011; 50 percent disabling from November 3, 2011 to December 2, 2015; and 70 percent disabling since December 2, 2015 under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9413. The relevant rating criteria are set forth below. A 10 percent rating is assigned when a veteran's mental disorder causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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. When evaluating a mental disorder, the rating agency 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) and result in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). A GAF score of 81 to 90 indicates absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). After review of the evidence of record, the Board finds that a rating of 10 percent is warranted for the period prior to July 9, 2010, a rating of 50 percent is warranted from July 9, 2010 to November 3, 2011, and a rating of 70 percent is warranted from November 3, 2011 to December 2, 2015 and thereafter. Period from February 8, 2008 to July 9, 2010 The Veteran was first afforded a VA psychiatric examination in May 2008. At the examination, the Veteran reported that his medication was helpful in controlling his symptoms and that he was not having significant anxiety or panic spells. He also stated that he had returned to work as a school resource officer and had no significant work-related problems, attending his job regularly and performing his duties adequately. He stated that he had a good relationship with his girlfriend and his father. Although he occasionally visited coworkers and others who enjoyed similar hobbies such as flying radio-controlled airplanes and racing radio-controlled boats, he reported that he did not have many close personal friendships and mainly socialized with his girlfriend. He also reported that he traveled to Atlanta and Baltimore for the races. The Veteran stated that he has had no intense anxiety episodes and did not have avoidance behavior or agoraphobia. He stated, instead, that he is able to go to stores, malls, restaurants, and talk in front of students during the class presentations he gives. Although he noted a small amount of anxiety when initially talking in front of others, he denied excessive anxiety in other situations. The Veteran endorsed some irritability but denied a depressed mood. The examiner also noted that the Veteran did not have significant anger problems or impaired impulse control with regard to his anger outbursts. During the mental status examination, the examiner observed that the Veteran had a broad affect and euthymic mood, and appeared only mildly anxious. The examiner also determined that the Veteran had no impairment of thought process or communication, delusions or hallucinations. The Veteran denied suicidal and homicidal thinking and reported he performed personal hygiene and activities of daily living adequately. The examiner noted the Veteran was oriented and indicated no significant memory impairment or obsessive-compulsive behavior. The examiner diagnosed the Veteran with anxiety disorder in remission and a GAF score of 84. VA mental health records do not document treatment for mental health until July 2010 (discussed below), when his primary physician referred the Veteran for a mental health consultation due to worsening anxiety. The Board finds that the frequency, severity, and duration of the Veteran's psychiatric symptoms prior to July 9, 2010 most closely approximated the criteria for a 10 percent rating. Throughout that period, the Veteran did not demonstrate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as a depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, or mild memory loss, akin to a 30 percent rating. Particularly, the evidence shows that, prior to July 9, 2010, the Veteran had no social or family concerns, he was independent in his activities of daily living, personal hygiene, and travel; he attended his job regularly and performed it adequately; and his psychological symptomatology appeared to be no more than mild. In pertinent part, the Veteran denied a depressed mood, anxiety, and panic spells. The Veteran showed a mildly anxious mood but did not exhibit impairments of thought process, communication, memory, or obsessive-compulsive behavior. See May 2008 VA Mental Disorders Examination. Moreover, the symptoms noted by the Veteran during treatment or by the VA examiner, including mild anxiety, are contemplated by the 10 percent rating criteria or by the criteria for lower evaluations. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that prior to July 9, 2010 the Veteran's anxiety disorder most closely approximated the 10 percent rating, but not higher. Period from July 9, 2010 to November 3, 2011 At a July 2010 VA mental health consultation, the Veteran reported that his panic symptoms had improved over the years but he had begun to have anxiety symptoms the previous Monday. The Veteran explained that his response to a mild provoking stimulus, such as public speaking, was exaggerated and although he did not have full-blown panic attacks, he did have increased anxiety and fear. He also stated that he did fairly well in crowded places like malls or restaurants if he felt he was not the focus of attention. He indicated that he was nervous, anxious, and fidgety most of the time. The Veteran endorsed depression that had worsened since school had let out and he no longer worked his usual shifts. He reported that he saw himself as losing control and having anger outbursts but denied that his anger led to violence, aggression, or property damage. The Veteran reported difficulty with sleep since his change in work schedule, excess energy, and impaired focus. He continued to report that he got along with family and had few friends. He kept himself busy with projects around the house, camping, and building and flying radio-controlled airplanes. He denied thoughts of self-harm or harm to others. During the mental status examination, the psychiatrist observed that the Veteran was fidgety with his hands throughout the interview and that the Veteran had a mildly anxious affect with normal range and intensity. The psychiatrist noted the Veteran had no notable psychomotor abnormality or abnormal involuntary movements. He had fair eye contact and clear, comprehensible speech. The Veteran had linear thought patterns with no evidence of suicidal ideation, homicidal ideation, formal thought disorder, or bizarre thinking. The psychiatrist diagnosed the Veteran with panic disorder without agoraphobia in partial remission and a GAF score of 55, and increased his medication dosage. VA treatment records from October 2010 to February 2011 reflect that the Veteran reported anxiety, panic attacks, and some depressive symptoms. He also reported that his emotions and anxiety affected his symptoms of rosacea and he was embarrassed that he may have a panic attack. As such, he avoided presumed precipitants, which he indicated affected his daily life and career development. The Veteran reported poor sleep with repeated waking. However, he denied feelings of hopelessness and worthlessness, paranoia, delusions, and suicidal or homicidal ideation. Although the Veteran endorsed decreased anxiety symptoms and minimal depressive symptoms, he also acknowledged that his avoidance and fear of symptoms recurrence was affecting his career. He was assessed with a GAF score of 50 during this period. An August 2011 VA mental disorders examination report also reflects that the Veteran had a depressed mood and anxiety. No other psychiatric symptoms were noted. The Veteran reported that he got along with his wife and two stepchildren and had some friends he met through his hobby of flying radio-controlled model planes. He also stated he kept busy with house projects, remodeling, and yard tasks and had no problems going out in public, including to restaurants, stores, and malls. The Veteran denied any significant difficulty with his job as a police officer at a high school although he endorsed some subjective anxiety when he needed to testify in court. He indicated he could function in that role adequately. The Veteran also reported that his medications helped "tremendously" and denied having panic attacks in over a year. He also denied suicidal or homicidal ideation or any significant anger outbursts. The VA examiner determined that the Veteran had a GAF score of 79 and he had anxiety disorder that resulted in occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Based upon the above, the Board finds that from July 9, 2010 to November 3, 2011, the Veteran's anxiety disorder most closely approximated the criteria for a 50 percent rating. The Veteran's reported symptomatology during this period is consistent with no more than moderate to moderately severe symptoms or difficulty in social, occupational, or school functioning. Throughout this period, he did not demonstrate the symptoms associated with higher ratings, nor did he demonstrate other symptoms of similar severity, frequency, and duration. Although the Veteran endorsed depression and anxiety, he consistently denied experiencing suicidal ideations, intent, or plans, and there has never been an indication that his anxiety symptoms include severe obsessional rituals or hallucinations, as evidenced during VA treatment and the July 2010 and August 2011 VA examinations. In this regard, the Veteran had family and friends that he socialized with and enjoyed leisure activities, to include yard work and flying radio-controlled model airplanes, and he was employed full time in his usual occupation. The Board finds that, notwithstanding the sole GAF score of 79, the Veteran's symptomatology and other GAF scores of 50 and 55, as discussed above, are suggestive of occupational and social impairment with reduced reliability and productivity and warrant a 50 percent rating. Moreover, the symptoms noted by the Veteran during treatment or VA examiner, including sleeplessness and mild symptoms of depression, are contemplated by the 50 percent rating criteria or by the criteria for lower evaluations. While some of the Veteran's symptoms during this period are not specifically enumerated in those criteria, the Board finds that the Veteran's overall mental health picture during this period, as evidenced by VA treatment and during the VA examinations, is in keeping with a 50 percent rating. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that a rating in excess of 50 percent for the Veteran's anxiety disorder is not warranted from July 9, 2010 to November 3, 2011. Period from November 3, 2011 to December 2, 2015 At a December 2011 private psychological evaluation, the psychologist observed the Veteran was uptight and tense with a watchful anxious quality. The Veteran reported sleep patterns marked by insomnia with awakening, low energy, and occasional draining fatigue. He endorsed daily depression but denied mania or hypomania. The Veteran indicated that he was always impatient, irritated, and angry. The psychologist observed that the Veteran had compulsive behavior with ruminative thoughts and preoccupation with rules but he noted that the Veteran seemed to deny his obsessive compulsive predisposition. The Veteran reported a fear of being in a closed-in situation, where he may have to be confrontational and act in a manner contrary to his expectations. He denied suicidal and homicidal ideation. During the mental status examination, the psychologist observed that the Veteran's attitude was uneasy and tense and his speech was rapid. He had an anxious and slightly agitated mood and moderately impaired delayed memory. The Veteran stated that he did not attend church, had no friends, and rarely visited relatives. The psychologist noted that the Veteran had shown progressive withdrawal from others and significant withdrawal and detachment from his wife. He did go out to dinner once a week with his family. The psychologist diagnosed the Veteran with major depressive disorder and a GAF score of 55. He determined the Veteran had deficiencies in family relations, mood, and work; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and depression affecting the ability to function independently and effectively. At VA mental health treatment visits from November 2011 to August 2012 the Veteran reported his wife's complaints that he became aggravated easily. Although the Veteran indicated he felt fine, he also complained of loss of energy, decreased interest in previously enjoyed activities, and impaired sleep. He stated that he avoided meeting people, but did socialize with his wife's friends. The Veteran described panic episodes consisting of autonomic symptoms, chest tightness, feeling of doom, shortness of breath, sweating, tachycardia, and skin flushing. Mental status examinations documented an anxious and dysthymic affect but no impaired attention, concentration, cognitive function, or memory. He did not display psychomotor agitation or retardation or behavior indicating he was experiencing hallucinations. The Veteran did report that he continued to work as a police officer and continued to enjoy his hobbies and travel. The Veteran reported that he drank 8 to 10 alcoholic drinks per week. Throughout this period, he denied suicidal and homicidal thoughts or plans and denied hallucinations and symptoms of mania. He was assessed with GAF scores of 50, 55, and 62 during this period. Although the Veteran reported he was doing well and denied any psychiatric symptoms at an April 2012 mental health visit, a May 2012 VA mental disorders examination report documents symptoms of depressed mood, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. During the examination, the Veteran reported he had not made new friends in years and had no desire to. He did not have interest in interacting with others, liked to be alone, and had difficulty getting along with his wife. The Veteran also stated that he no longer enjoyed his job or hobbies and would rather not work. He indicated that his wife and stepchildren have complained that he does not show emotion and that he was verbally aggressive. His wife had also indicated that he spent more money when he has periods of happiness. The Veteran reported that he had trouble at his job when he forgot to subpoena people. The VA examiner determined the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner assessed the Veteran with a GAF score of 65. At VA mental health visits from July 2013 to November 2015, the Veteran indicated he was recently divorced and reported that his sleep and energy were well and enjoyed doing activities for pleasure. However, at those same visits he also endorsed that despite frequent travel for work and vacations, he had no desire to work on any of his projects or hobbies, including remodeling his home, fixing up his cars, or building model airplanes. He denied manic, paranoid, or psychotic symptoms and suicidal or homicidal ideations. Mental status examinations documented normal findings but the Veteran was assessed with a GAF score of 60. Although a March 2014 treatment note documents an improvement of symptoms, at an October 2014 mental health consultation, the Veteran reported panic attacks, agoraphobia, performance anxiety, and depression. He also indicated that he was unable to go to job promotion interviews due to anxiety, fear of failure, and avoidance of crowds and speaking engagements. The Veteran endorsed dysphoria, increased drinking, insomnia, low energy, and dread accompanied by shortness of breath, tremors, palpations, etc. The Veteran had similar complaints, including poor short-term memory, poor concentration, low energy, and depressed mood, from October 2015 to December 2015. The Board finds the Veteran's anxiety disorder from November 3, 2011 to December 2, 2015 most closely approximated the criteria for a 70 percent rating. Throughout that period, the Veteran demonstrated symptoms of loneliness, self-isolation, obsessional rituals, difficulty with sleep, difficulty in adapting to stressful circumstances, near continuous depression, avoidance, increased irritability and easily aggravated, an inability to establish and maintain effective relationships, and deficiencies in family relations, work and mood. Given the Veteran's reports of isolation, increased irritability, fear, and avoidance, the Board finds that his symptoms during this period caused occupational and social impairment in the areas of work, school, family relations, and mood. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that from November 3, 2011 to December 2, 2015 the Veteran's anxiety disorder most closely approximated the 70 percent rating. However, the evidence of record does not support a rating of 100 percent - the only higher disability evaluation available - during this period. The December 2011 private psychologist or the May 2012 VA examiner did not note that the Veteran's symptoms cause total occupational and social impairment. Moreover, the record does not reflect that the Veteran has at any point 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, or any of the other markers of total occupational and social impairment due to his service-connected anxiety disorder. Period since December 2, 2015 At a December 2015 VA mental disorders examination, the Veteran reported difficulty in relationships of all kinds and that he had difficulty maintaining relationships. He did not trust anyone but his parents and one sister. He indicated that he has stayed home alone all the time for the past two years. He stated that he had no friends or romantic relationships. The Veteran endorsed an increase in intense anxiety and worry, accompanied with episodes of depression. The examiner determined that the Veteran had excessive anxiety and worry occurring more days than not for more than 6 months, was unable to control his worry, and was very irritable with impaired concentration. The examiner also noted that the Veteran had anhedonia and obsessions/compulsions that are recurring, persisting, and intrusive. The examiner further observed the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, suicidal ideation, obsessional rituals which interfere with routine activities, inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances and establishing and maintaining effective work and social relationships. The examiner determined that the Veteran had 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. VA mental health visits from December 2015 to December 2016 reflected similar symptoms including self-isolation, depression, anhedonia, suicidal ideation, obsessive thoughts and rituals, difficulty trusting others, impulsive spending, poor concentration and decision-making, sleep disturbance, hopelessness, and negative thoughts at work. Based on the foregoing, the Board finds that since December 2, 2015, the Veteran's anxiety disorder most closely approximates the criteria for a 70 percent rating. The Veteran has demonstrated symptoms of loneliness, self-isolation, obsessional rituals, suicidal ideation, difficulty with sleep, difficulty in adapting to stressful circumstances, near continuous depression, avoidance, increased irritability and easily aggravated, obsessional rituals which interfere with routine activities, inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances and establishing and maintaining effective work and social relationships. Given the Veteran's reports of suicidal ideation, isolation, increased irritability, and avoidance, the Board finds that his symptoms cause occupational and social impairment in the areas of work, school, family relations, and mood. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that since December 2, 2015 the Veteran's service-connected anxiety disorder most closely approximates the 70 percent rating. However, the evidence of record does not support a rating of 100 percent - the only higher disability evaluation available - during this period. The December 2015 examiner did not note that the Veteran's symptoms cause total occupational and social impairment. Moreover, the record does not reflect that the Veteran has at any point 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, or any of the other markers of total occupational and social impairment due to his service-connected anxiety disorder. The Board also acknowledges that the Veteran is competent to report the symptomatology associated with his anxiety disorder. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). With respect to each period, the Board has considered the Veteran's assertions as to his symptomatology and the severity of his condition, but to the extent he believes he is entitled to higher ratings during those periods, concludes that the findings during medical evaluations are more probative than the Veteran's lay assertions to that effect. In sum, the Board finds that, for the service-connected anxiety disorder, a rating of 10 percent is warranted prior to July 9 2010, a rating of 50 percent is warranted from July 9, 2010 to November 3, 2011, and that a rating no higher than 70 percent is warranted from November 3, 2011 to December 2, 2015 and thereafter. ORDER Service connection for sleep apnea is granted. Prior to July 9, 2010, an initial rating in excess of 10 percent for service-connected anxiety disorder is denied. From July 9, 2010 to November 3, 2011, an increased initial rating of 50 percent, but no higher, for service-connected anxiety disorder is granted. From November 3, 2011to December 2, 2015, an increased initial rating of 70 percent, but no higher, for service-connected anxiety disorder is granted. From December 2, 2015, an initial rating in excess of 70 percent for service-connected anxiety disorder is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs