Citation Nr: 1804793 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-00 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 70 percent for bipolar disorder with post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from April 1983 to August 1986, the United States Army from January 1989 to May 1989 and October 2002 to November 2003, and had additional service in the Army National Guard of Oklahoma. This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision and a July 2013 rating decision of the Department of Veterans of Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran initially requested a hearing before a Veterans Law Judge. However, in a December 2017 statement, the Veteran's representative stated that he wished to cancel his hearing. The issues of service connection for sleep apnea and service connection for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's bipolar disorder and PTSD manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for bipolar disorder and PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411, 9432 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify was satisfied by letters sent in April 2011 and November 2011. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The evidence of record includes the Veteran's Service Treatment Records (STRs), his VA treatment records, his private medical records, and the reports of his VA examinations. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The Veteran received VA examinations in December 2011 and November 2015. The Board finds these examinations were adequate as the examiners reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and provided detailed findings. Ardison v. Brown, 6 Vet. App. 405 (1994). Accordingly, the Board's duty to assist has been fulfilled. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bipolar disorder and PTSD are evaluated under Diagnostic Codes 9411 and 9431. 38 C.F.R. § 4.130 (2017). Both disorders are evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2017). A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2017). Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Board notes the evidence of record contains the Veteran's continued treatment for his mental health conditions. The Veteran received a VA examination in December 2011. The VA examiner found the Veteran's bipolar disorder and PTSD could not be differentiated from his other mental health disorders because all the symptoms overlapped. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181 (1998) (per curiam). The VA examiner found the Veteran's disabilities caused occupational and social impairment with reduced reliability and productivity, which is contemplated by the 50 percent criteria. The Veteran continued his work as an attorney; however, he was recently expelled from court by a judge for being too argumentative with another attorney. He had difficulty managing his anger. Furthermore, the Veteran noted that he was trying to get involved more in appellate work so he had less peer interaction. The Veteran stated his levels of agitation, depression, and anxiety had increased. He had sleep disturbance, mild memory loss, suspiciousness, was hypervigilant, and had an exaggerated startle response. His judgment and impulse control were impaired. He had difficulty establishing and maintaining effective work and social relationships. He had suicidal ideation. The Veteran continued to receive treatment and a July 2014 VA treatment record noted that he had a "crazy dream," increased depressed mood, and emotional reactions with feelings of paranoia. The Veteran noted that he had thoughts of death but denied having any imminent plans or active suicidal ideation. Nevertheless, the Veteran stated he recently completed a business trip to Cuba with no problems. The Veteran's most recent VA examination was in November 2015. The Veteran noted while he still worked as an attorney, he could no longer engage in litigation. The Veteran coordinated the legal office and recruited clients. The Veteran stated he still had problems with short term memory, but the Veteran noted that he did puzzles to help with his short term memory. The VA examiner noted the Veteran needed structure to help with his day and not become disoriented. In his free time, the Veteran liked to take walks and go to the beach. The Veteran also took care of his father. He was divorced and did not have any children. He had sleep disturbance and only got four to six hours of sleep per night. He felt that his moods were unstable. He reported depressed mood, anxiety, mild memory loss, and disturbances of motivation and mood. The Veteran avoided shopping and any major cleaning; additionally, he had his secretary pay his bills. He stopped playing golf, but it was due to his neck pain and not due to his psychiatric symptoms. He denied suicidal or homicidal thoughts. The Board finds the Veteran's level of disability is best captured by the 70 percent rating. The Board finds the evidence of record does not support a finding that the Veteran has both total occupational and total social impairment. The Veteran has continued to work as an attorney and as part of his duties engages in recruiting clients to his practice. Therefore, the Veteran does not have total social impairment as he is still able to engage with others in a social manner such that he can recruit legal clients. He also takes care of his father. The Board notes that there is evidence that the Veteran does need help with some daily activities, like tying a bowtie; however, needing some help with some of his daily activities does not meet the standard of total impairment. The Veteran now lives alone and is able to continue his work as an attorney, with some limitations. The Board also acknowledges the Veteran experiences memory loss, however it is not severe enough that it causes total occupational and total social impairment.. The Veteran engages in strategies to help with his memory loss such as working on puzzles. Furthermore, while the Veteran can experience disorientation, this symptom is minimized when his schedule remains structured. Thus, the Board finds the Veteran's disability rating for bipolar disorder and PTSD is best described by the 70 percent criteria. See 38 C.F.R. § 4.130 (2017). Finally, a total disability rating based on individual unemployability (TDIU) is not warranted because the evidence does not show, and the Veteran does not assert, that his bipolar disorder and PTSD render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). As previously stated, the Veteran continues to work as an attorney. ORDER Entitlement to a rating in excess for 70 percent for bipolar disorder and PTSD is denied. REMAND The Board concludes this case must be remanded to afford the Veteran an opportunity to have a VA examination for sleep apnea and bilateral hearing loss. A VA examination is required when there is an indication that the disability may be associated with the Veteran's service. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record contains multiple lay statements from the Veteran and his comrades discussing his snoring in service. Accordingly, the Board finds a VA examination is necessary to determine if the Veteran's current sleep apnea diagnosis is related to his in-service snoring. The Veteran underwent a VA examination for his hearing loss in December 2011. The results of the audiogram were not valid for rating purposes because the Veteran was falling asleep during testing. The examiner was unable to provide an opinion because the test results were invalid. The Board finds the record is insufficient to decide the claim without an etiology opinion. Therefore an examination is needed. The Board notes the Veteran's hearing issue was noted on his March 1983 entrance examination. The Veteran received a "2" profile for his hearing on entry into service. This indicates some level of hearing loss. However, his entry audiogram showed the following pure tone thresholds. HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 0 LEFT 20 25 35 30 20 However, if the degree of hearing loss noted on entrance medical examinations do not meet VA's definition of a disability for hearing loss under 38 C.F.R. § 3.385, then the presumption of soundness applies. McKinney v. McDonald, 28 Vet. App. 15, 28 (2016). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). Accordingly, the Veteran's hearing should be considered normal on entry into service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: the Veteran's comrades' June 2012 lay statements and the Veteran's April 2013 documenting the Veteran's in-service snoring The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea began during active service, or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to whether it is at least as likely as not that the Veteran's bilateral hearing loss began during active service, or is related to an incident of service, or manifested within one year of service. The Board acknowledges that the Veteran was exposed to excessive noise due to artillery fire. The examiner must provide all findings, along with a complete rational for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rational for such conclusion. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow applicable time for response. Then, return the case to the Board The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs