Citation Nr: 18153459 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-04 084 DATE: November 27, 2018 ORDER The claim for entitlement to a compensable disability rating for residual scars, bilateral lower quadrants, associated with laparoscopic hernia repairs, is dismissed. Entitlement to a 70 percent disability rating, but no higher, is granted for the Veteran’s service-connected major depressive disorder for the entire period on appeal. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. In an October 2018 written statement, the Veteran withdrew his claim for entitlement to a compensable disability for residual scars, bilateral lower quadrants, associated with laparoscopic hernia repairs. 2. Throughout the entire period on appeal, the Veteran’s major depressive disorder has resulted in occupational and social deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s appeal on the claim of entitlement to a compensable disability rating for service-connected residual scars, bilateral lower quadrants, associated with laparoscopic hernia repairs have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for a rating of 70 percent for service-connected major depressive disorder, but not more, have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 2008 to October 2009. This appeal comes before the Board of Veterans’ Appeals (the Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested to testify at a videoconference hearing before the Board on his January 2015 substantive appeal, the Veteran’s representative withdrew the hearing request in an October 2018 correspondence. 1. Entitlement to a compensable disability rating for service-connected residual scars, bilateral lower quadrants, associated with laparoscopic hernia repairs Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). In a written statement submitted by the Veteran’s authorized representative in October 2018, the Veteran withdrew from consideration the issue of entitlement to a compensable rating for service-connected residual scars, bilateral lower quadrants, associated with laparoscopic hernia repairs. As the Veteran has withdrawn his appeal regarding this issue, there remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on the issue, and it is dismissed. 2. Entitlement to an initial rating in excess of 50 percent for service-connected major depressive disorder Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for situations where the disability may have been more severe than at other times during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and shall evaluate the evidence as it bears on occupational and social impairments rather than relying solely on the examiners assessment of the level of disability. 38 C.F.R. § 4.126. Entitlement to service connection for major depressive disorder was granted in a May 2011 rating decision. The RO assigned an initial 30 percent rating under Diagnostic Code 9434. In a December 2014 decision, the RO granted an initial 50 percent rating for major depressive disorder prior to July 27, 2011 and a 70 percent rating thereafter. The Veteran maintains that he should be evaluated at 70 percent for the entire period on appeal. Under Diagnostic Code (DC) 9434, a 50 percent rating is warranted if there is 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted when there is 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 that 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. The maximum rating of 100 percent requires 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; and memory loss for names of close relatives, own occupation, or own name. The specified factors for each incremental psychiatric rating are not requirements for a particular rating, but rather are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. During an April 2010 VA examination, the Veteran reported that he was prescribed medication for his mental disorder. He indicated that he suffered from daily, constant depression. On observation, the Veteran was clean, neatly groomed, and casually dressed. He was oriented in all facets and his judgment and insight were intact. The Veteran reported sleep impairment, noting that the medications helped him to sleep 3 to 4 hours a night. There was no evidence of hallucinations or delusions. The Veteran denied panic attacks and homicidal and suicidal ideation. The examiner found that the Veteran’s symptomatology was consistent with occupational and social impairment with deficiencies in most areas. The Veteran was afforded an additional VA examination in July 2011. At that time, the examiner provided a diagnosis of severe depressive episode and concluded that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran reported ongoing marital strain due to depression and irritability and stated that he was detached from his 2 children at times. The Veteran denied having friends and said that his activity was markedly limited by pain. The Veteran endorsed a depressed mood, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner stated that the Veteran would have difficulty in a work setting due to periods of anergia and reduced concentration but not to the point of being totally incapable of performing work. During a November 2011 VA examination, the Veteran reported symptoms of depressed mood, anxiety, suspiciousness, sleep impairment, mild memory loss, flatted affect, lack of motivation, and inability to establish and maintain effective relationships. The examiner found occupational and social impairment with reduced reliability and productivity. In September 2012, during a private psychiatric examination, the Veteran reported psychological symptoms beginning in February 2009 following a back injury during military training. The Veteran admitted to suicidal thoughts in 2009. He indicated that he had been married for 29 years and had 2 children whom he lived with. On observation, he was alert and oriented. His affect was reactive and his mood was dysphoric, irritable, and anxious. His thought processes were confused but he denied current suicidal and homicidal thoughts. The Veteran noted sleep-related hallucinations but denied delusions. His concentration was poor and he suffered from a sleep impairment. His insight was limited and his judgment was intact. The Veteran and psychiatrist both noted that his symptoms had been continuous, and at their current level of severity, since October 2009. During a July 2014 VA examination, the examiner stated that “depression due to a medical condition” is a more appropriate diagnosis for the Veteran’s condition, because the Veteran’s depression is relation to his service-connected gastrointestinal conditions and related pain. The Veteran continued to live with his wife of 30 years but with conflict related to his mental condition. He reported not doing activities with his children due to pain and depression. He denied having friends and said he was socially withdrawn. The symptoms the examiner noted included depressed mood, chronic sleep problems, lack of motivation, difficulty maintaining work and social relationships, and difficulty adapting to stressful situations. Following a review of the evidence, to include the statements of the Veteran, the Board finds that the Veteran’s major depressive disorder more nearly approximates the criteria for a 70 percent disability rating throughout the appeal period. The majority of the medical evidence reflects symptomatology consistent with a 70 percent disability. The Veteran reported being socially withdrawn and was noted to have difficulty adapting to stressful circumstances, including work. Additionally, there is at least some evidence of a history of suicidal ideation. The Board finds the April 2010 and July 2011 VA examiner’s opinions and the September 2012 private examination report particularly probative regarding the Veteran’s level of impairment. Further, the Veteran’s symptoms and severity have been shown to be consistent throughout the period on appeal. Accordingly, and based on these findings, the Board finds that a 70 percent rating is warranted, throughout the period on appeal. Nevertheless, the Board finds that a rating in excess of 70 percent is not warranted at any time during the pendency of the claim, as the Veteran’s symptomatology does not manifest as total occupational and social impairment. Indeed, although strained, the Veteran has maintained a 30-year marriage and has a relationship with his 2 children. The Veteran was regularly noted to be well-groomed, appropriately dressed, and able to maintain his finances and there is no evidence to suggest that he is in persistent danger of hurting himself or others. The Board concludes the criteria for a 100 percent rating for major depressive disorder have not been met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9434. In summary, the Board finds that the Veteran’s service-connected major depressive disorder symptomatology most nearly approximates the criteria for a 70 percent disability rating, but no higher, throughout the period on appeal. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea The Veteran submitted a December 2012 sleep apnea disability benefits questionnaire (DBQ) reflecting that he has a current diagnosis of obstructive sleep apnea. A July 2012 sleep apnea DBQ notes the Veteran’s April 2012 obstructive sleep apnea diagnosis and indicates that the Veteran’s major depressive disorder “pertains” to the diagnosis of sleep apnea. In a September 2014 statement, the Veteran related his obstructive sleep apnea to his medication, depression, and lower back injury. An opinion should be obtained regarding the nature and etiology of the Veteran’s currently diagnosed obstructive sleep apnea. Specifically, further medical evidence is required to determine whether the Veteran’s diagnosed obstructive sleep apnea is secondary to a service-connected disability, to include medications taken for treatment thereof. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records and associate them with the Veteran’s electronic claims file. Any negative response received should be associated therewith. 2. Thereafter, obtain an addendum medical opinion from an appropriate examiner to address the etiology of the Veteran’s diagnosed obstructive sleep apnea. The examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was caused by or had its onset during active service? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was caused by a service-connected disability, to include medications taken therefor? Please consider and discuss as necessary the Veteran’s service-connected major depressive disorder and back disability. (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was aggravated (permanently worsened) by a service-connected disability, to include medications taken therefor? Please consider and discuss as necessary the Veteran’s service-connected major depressive disorder and back disability. The claims file should be made available to and reviewed by the examiner. If an additional examination is deemed warranted, one should be arranged. All indicated tests and studies should be undertaken. The examiner must explain the rationale for all opinions rendered, citing to supporting factual data and/or medical literature, as appropriate. (Continued on the next page)   The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying disorder versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of sleep apnea (i.e., a baseline) before the onset of the aggravation. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Stuedemann, Associate Counsel