Citation Nr: 19104635 Decision Date: 01/18/19 Archive Date: 01/18/19 DOCKET NO. 16-48 117 DATE: January 18, 2019 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to an initial disability evaluation of 70 percent, but no greater, for generalized anxiety disorder, for the period from August 12, 2013 to December 16, 2015, is granted Entitlement to a disability evaluation in excess of 70 percent for generalized anxiety disorder, for the period since December 16, 2015, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had sleep apnea at any time during or approximate to the pendency of the claim. 2. Resolving reasonable doubt in the Veteran’s favor, for the period from August 12, 2013 to December 16, 2015, the Veteran’s generalized anxiety disorder was manifested by symptoms such as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Total occupation and social impairment was not shown. 3. Since December 16, 2015, the Veteran’s generalized anxiety disorder is manifested by symptoms such as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Total occupation and social impairment is not shown. 4. The Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. For the period from August 12, 2013 to December 16, 2015, the criteria for an initial rating of 70 percent disabling, but no greater, for generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.126, 4.130, DC 9400. 3. Since December 16, 2015, the criteria for a rating in excess of 70 percent disabling for generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.126, 4.130, DC 9400. 4. The criteria for assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to May 2007. Duties to Notify and Assist VA’s duty to notify was satisfied by a letter dated in February 2014. 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). VA has also satisfied its duty pursuant to 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (c) to assist the Veteran. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran’s available service treatment records, service personnel records, VA and private medical records, and the Veteran’s statements. The Veteran was afforded VA examinations to determine the nature and etiology of any sleep apnea condition and the severity of her generalized anxiety disorder. The Veteran has not argued, and the record does not reflect, that the VA medical opinions or examinations are inadequate. 38 C.F.R. § 3.159 (c) (4), 4.2; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiners considered the Veteran’s relevant medical history and provided well-reasoned and adequately supported conclusions. 1. Entitlement to service connection for sleep apnea The Veteran contends that she suffers from sleep apnea which was incurred in service. Legal Criteria Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis In service, the Veteran’s service treatment records show that in January 2007 the Veteran complained of fatigue and constant sleepiness. The treatment provider assessed the Veteran’s condition as malaise and fatigue, possible sleep apnea, and recommended further evaluation in the form of a sleep study. No sleep study or other follow-up is found in the Veteran’s service treatment records. In August 2016, a VA examiner reviewed the Veteran’s medical history to determine the nature and etiology of any sleep apnea condition. The examiner acknowledged the Veteran’s complaints of sleepiness and fatigue in service in January 2007. However, the examiner found that this record did not support a diagnosis of sleep apnea, and noted that the remaining service treatment records do not contain any other sleep complaints. Based upon a review of the Veteran’s medical history, the examiner concluded that the Veteran does not have a diagnosis of sleep apnea. The Veteran’s post-service medical records do not show treatment for a sleep condition or a diagnosis of sleep apnea. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran’s statements that she suffers from sleep apnea, which was incurred during active duty service. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., fatigue; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, in this case she is not competent to independently render a medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Here, the Veteran is competent to report that she has sleep disturbance, but not that she has a separately diagnosed sleep related disability, to include sleep apnea. As a symptom, chronic sleep impairment is rated as part of the service-connected psychiatric disability. Thus, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, service connection is not warranted for sleep apnea. 2. Entitlement to an evaluation in excess of 70 percent for generalized anxiety disorder The Veteran asserts that her symptoms of generalized anxiety disorder are such that they warrant a disabling rating in excess of 30 percent prior to December 16, 2015, and in excess of 70 percent disabling from December 16, 2015 and after. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran was rated at 30 percent disabled prior to December 16, 2015, and 70 percent disabled afterward under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400. Under DC 9400, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula), a 30 percent rating is warranted 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 warranted 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’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. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran 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. From August 12, 2013 to December 16, 2015 In February 2014, the Veteran’s mother and spouse each submitted statements on the Veteran’s behalf. The Veteran’s spouse indicated that the Veteran suffered from severe depression, anxiety, and symptoms which she believed to be posttraumatic stress disorder (PTSD). The Veteran’s mother also stated that the Veteran was severely depressed after service, and to needed to seek medical treatment for extreme anxiety. At a December 2014 VA mental health examination, the Veteran reported symptoms including depressed mood, anxiety, suspiciousness, panic attacks, sleep impairment, and disturbances of motivation and mood. The examiner found the Veteran to have normal speech, with linear and logical thought process. The examiner noted no unusual behavior. Based on the clinical interview, the examiner diagnosed the Veteran with generalized anxiety disorder. The examiner concluded that the symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In October 2015, the Veteran’s private physician from Loma Linda Behavioral Medicine completed a mental disorder disability benefits questionnaire. The physician indicated that the Veteran has a diagnosis of major depressive disorder, recurrent, and anxiety disorder, unspecified. The physician listed the Veteran’s symptoms to include depressed mood, anxiety, panic attacks, memory loss, flattened affected, impaired judgment, disturbances of motivation or mood, difficulty in establishing relationships, difficulty in adapting to stressful circumstances, neglect of personal appearance, and intermittent ability to perform activities of daily living. The physician noted that the Veteran is being treated with intense group therapy and medication. Regarding the Veteran’s history, the physician noted that the Veteran has a partner, worked as a police office at the Department of Defense, and was in active duty until 2007. Based on the treating relationship, the examiner opined that the Veteran’s mental health symptoms would cause occupational and social impairment with deficiencies in most areas, such as work school, family relationships, judgement, thinking, and/or mood. The medical opinions of record are contradictory regarding the severity of the Veteran’s mental health symptoms prior to December 2015. Here, both the VA examiner’s and the treating physician’s opinions are competent and credible, and the Board will not assign greater probative weight to either. While the VA examiner cited to the Veteran’s medical history to support the medical opinion, the VA examiner only examined the Veteran one time. The private physician did not provide treatment records, but discussed Veteran’s medical history including intense group therapy and medication. Therefore, the Board finds that the contrary opinions are at least in equipoise. The Board also notes that the severity of symptomatology found by the private physician in October 2015 is similar to that found by VA examiners after December 2015. In light of the above, the Board concludes that the evidence of record is at least in equipoise concerning whether the Veteran’s mental health symptoms cause occupational and social impairment with deficiencies in most areas so as to warrant a 70 percent rating. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant a 70 percent disability rating for the period from August 12, 2013 to December 16, 2016. Gilbert, 1 Vet. App. at 55 (1990). Since December 16, 2015 At the VA examination on December 16, 2015, the examiner diagnosed the Veteran with generalized anxiety disorder and alcohol use disorder, moderate. The examiner noted that the Veteran was married and had a high school education. The Veteran reported that she was not working due to inpatient treatment at Loma Linda Behavioral Medicine. The examiner found that the Veteran’s service-connected generalized anxiety disorder causes the following symptoms: excessive anxiety and worry, difficult to control the worry, feeling keyed up/on edge, difficulty concentrating, irritability and sleep disturbance. Based on the clinical interview, the examiner concluded that the Veteran would have occupational and social impairment with reduced reliability and productivity. The Board notes that the Veteran has filed a claim for service connection for PTSD which is not currently before the Board. In August 2017, the Veteran submitted a Disability Benefits Questionnaire. Waiver of this evidence is presumed. This examination did not indicate total social and occupational impairment due to a service-connected psychiatric disability. After consideration of the evidence of record, the Board finds that, since December 16, 2015, the assignment of a 70 percent rating is appropriate. Additional Considerations For the entire period on appeal, a 100 percent rating is not warranted. The evidence of record does not show that the Veteran’s symptoms produce total social impairment as to warrant a 100 percent rating. The Veteran has been able to maintain relationships with her spouse and mother. The record does not establish that the Veteran is in persistent danger of hurting herself or others. There has been no evidence of delusions, gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living, or disorientation to time or place. There is no evidence that the Veteran experiences audio and visual hallucinations. In reaching this decision, the Board has considered the Veteran’s lay statements and the supporting statements submitted on her behalf. The Board notes that the Veteran is competent to report observations with regard to the severity of her symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent she argues her symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a rating higher than 70 percent is warranted. Accordingly, the Board finds that the evidence of record weighs against a finding of a disability rating in excess of 70 percent for the entire period on appeal. 38 C.F.R. § 4.130. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that her service-connected mental health condition prevents her from maintaining substantially gainful employment. Legal Criteria Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As the Veteran has been granted entitlement to a 70 percent rating for general anxiety disorder, she meets the criteria to be eligible for a schedular TDIU under 38 C.F.R. § 4.16(a). The Board notes that the Veteran has also been awarded a 50 percent rating for maxillary sinusitis and a 10 percent rating for tinnitus. The Veteran’s current combined disability rating is 90 percent.   Analysis In November 2015, the Veteran submitted an application for a total disability rating due to individual unemployability (TDIU). The Veteran stated that she was terminated from her job due to too many absences related to her mental health condition, and the she last worked in July 2015. The record shows that the Veteran has a high school education and past work experience as a police officer for the Department of Defense. The record contains VA medical opinions from December 2014, December 2015 and August 2017, in addition to an October 2015 private physician opinion. None of these clinicians specifically opined that the Veteran would be unable to work due to her mental health conditions. As discussed above, the record does not demonstrate total occupational impairment since July 2015, the date the Veteran indicated she stopped working. The record does not indicate that the Veteran’s physical service-connected disabilities would preclude employment. At an August 2015 VA audiology examination, the Veteran reported that her tinnitus causes ear pain, which is aggravated by listening to headphones, watching television, music, and noise. There is no indication in the medical record, to include the August 2015 VA audiology examination, that the Veteran’s tinnitus was impact her ability to maintain employment. At an August 2015 VA sinusitis examination, the examiner found that the Veteran’s sinus condition would not impact her ability to work. In sum, the medical evidence of record, to include private and VA medical opinions, does not show that the Veteran would be unable to maintain substantially gainful employment due to her service-connected mental health, sinusitis, and tinnitus disabilities. Therefore, a TDIU is not warranted. The Board further notes that a December 2015 VA medical record notes an audiological examination was conducted for employment purposes, and the Veteran was described as an “employee,” which suggests that the Veteran has worked since July 2015. Based on the foregoing evidence, the Board finds that the Veteran’s service- connected mental health, sinusitis, and tinnitus disabilities do not prevent her from obtaining and maintaining substantially gainful employment. The Board acknowledges the Veteran’s assertion that she is unemployable due to her mental health condition. However, while the Veteran’s mental health would have an impact on her occupational activities, the evidence shows that the severity of the Veteran’s conditions would not preclude employment. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the Board is cognizant that the Veteran would have difficulty due to her mental health condition, the preponderance of the evidence of record demonstrates that the Veteran is not precluded from securing and following substantially gainful employment due to her service-connected conditions. The fact that a veteran is currently not working or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating.   After reviewing all the evidence of record and considering the Veteran’s education and work history, the Board concludes that the preponderance of the evidence does not show that the Veteran would be unable to obtain or maintain substantially gainful work due to her service-connected disabilities. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel