Citation Nr: 20006352 Decision Date: 01/27/20 Archive Date: 01/24/20 DOCKET NO. 19-18 125 DATE: January 27, 2020 ORDER An initial rating in excess of 70 percent for major depressive disorder with insomnia is denied. A compensable initial rating for obstructive sleep apnea is denied. Service connection for a right knee disorder, including bursitis, is denied. FINDINGS OF FACT 1. Major depressive disorder with insomnia manifests in no more than occupational and social impairment with deficiencies in most areas due to depressed mood, anxiety, panic attacks more than once per week, near-continuous panic or depression affecting the ability function independently, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, circumstantial or stereotypical speech, impaired judgment, disturbances of motivation or mood, difficulty in adapting to stressful circumstances such as work or a work-like setting, difficulty in establishing and maintaining effective relationships, suicidal ideation, and impaired impulse control. 2. Obstructive sleep apnea results in trouble falling asleep, staying asleep, and oversleeping and requires medication but not use of a CPAP machine and does not cause daytime or hypersomnolence. 3. A current right knee disorder is not shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for major depressive disorder with insomnia have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Codes 9434 (2019). 2. The criteria for a compensable initial rating for service-connected obstructive sleep apnea have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6847 (2019). 3. A right knee disorder was not incurred in service or presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 2008 to June 2016. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the increased rating claim for major depressive disorder with insomnia, service connection was granted in an August 2016 rating decision with a 30 percent rating assigned, which the Veteran appealed. In a February 2019 rating decision, a 70 percent rating was assigned for the entire appeal period. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Major depressive disorder with insomnia All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 an inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability 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; 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. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). At a January 2016 VA examination, the examiner diagnosed mild major depressive disorder and insomnia with manifestations of depressed mood and chronic sleep impairment that caused a decrease in work efficiency and the ability to perform occupational tasks only during periods of significant stress and symptoms controlled by medication. In August 2017, a private psychologist completed a VA Mental Disorders Disability Benefits Questionnaire and diagnosed recurrent severe major depressive disorder with a history of symptoms including tearfulness, emotional numbness, isolating from friends and family, anhedonia and decreased interest in activities, hopelessness, blunt affect, cognitive dulling, psychomotor retardation and suicidal ideation with an aborted suicide attempt in 2010. Additionally, the psychologist documented symptoms of depressed mood, anxiety, panic attacks more than once per week, near-continuous panic or depression affecting the ability function independently, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, circumstantial or stereotypical speech, impaired judgment, disturbances of motivation or mood, difficulty in adapting to stressful circumstances such as work or a work-like setting, difficulty in establishing and maintaining effective relationships, and impaired impulse control. The Veteran had been in a relationship for one year that was strained due to his lack of sleep and had four close friends. He only engaged in activities outside the house once per week. The psychologist indicated that the Veteran had lost employment opportunities and had deficiencies in most areas, including work/school, family relations, judgment, thinking, and/or mood. A review of treatment notes does not present any symptoms of the Veteran’s acquired psychiatric disorder that are more severe than the symptoms documented at the VA examinations. Treatment notes document that the Veteran has ended relationships with two girlfriends since the August 2017 VA examination, but he still engaged with family and friends, including a 10-day visit with grandparents and cousins over Christmas in 2018. Additionally, treatment notes establish that the Veteran both works and goes to school, but that these situations cause stress. After looking to the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture, the preponderance of evidence demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent, but no greater. A rating in excess of 70 percent requires total occupational and social impairment with such manifestations as a complete inability to engage in family and social relationships and neglect of hygiene and/or other activities of daily living. This level of disability was not shown as the Veteran continued to pay attention to hygiene and self-care, maintained multiple social relationships with friends, engaged in activities outside of the house, albeit only once per week, was able to communicate without gross impairment of thought, and did not exhibit inappropriate behavior. Considering these facts, a rating in excess of 70 percent at any time during the appeal period is not supported by the medical evidence. Obstructive sleep apnea The Veteran’s obstructive sleep apnea is assigned a noncompensable (0 percent) rating evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6847. A compensable rating requires at least persistent daytime hypersomnolence. A January 2016 VA examiner documented the Veteran’s history of trouble sleeping at night. A July 2015 sleep study had found mild obstructive sleep apnea. There were no associated findings, signs, or symptoms attributable to sleep apnea, and the Veteran did not require medication or a CPAP machine. A private evaluation received in August 2016 indicated that the Veteran’s symptoms warranted a 30 percent rating for persistent daytime hypersomnolence. This finding was based on statement by the Veteran that he felt tired and sluggish throughout the day to the point where he tended to nod off at his desk and feel fatigued and tired, causing trouble concentrating and completing everyday tasks. However, a May 2019 in-person VA examination again found that the Veteran had trouble falling and staying asleep but had no other signs or symptoms attributable to sleep apnea, including no persistent daytime hypersomnolence. The Veteran indicated that he had recently been prescribed medication for his sleep, but he was not using a CPAP machine. VA treatment notes reflect prescriptions for varying medications to help with sleeping difficulties and anxiety. The Veteran indicated that he had trouble falling asleep and then would oversleep. However, daytime somnolence was not reported at any time, and May 2017 VA treatment notes specifically state that the Veteran did not fall asleep during work, church, or during usual activities. Thus, considering the above, the Veteran’s obstructive sleep apnea does not more nearly approximate the criteria for a compensable rating. Although he apparently reported falling asleep during the day to an August 2016 private examiner, he did not describe such manifestations at his in-person VA examinations or when receiving treatment at VA. Rather VA treatment notes specifically state that he was not falling asleep during activities. Additionally, he did not use a CPAP. Therefore, the Veteran’s description of the impact of his sleep apnea in August 2016 appears to not represent a permanent increase in severity when compared with the medical evidence before and after that date. Accordingly, the preponderance of the medical evidence does not support a compensable rating for obstructive sleep apnea at any time during the period on appeal. Conclusion The Board has considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disorder and obstructive sleep apnea has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Service Connection Claim Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not establish that the Veteran has a diagnosis of a right knee disorder. A January 2016 VA examiner evaluated both knees and assigned no diagnosis to the right knee. X-rays taken at that time were negative. The Veteran complained of bilateral knee pain that was dull then sharp and worse going down stairs. A May 2019 VA examination report reflected right knee tenderness with palpation. However, again no functional loss was found upon testing, and no diagnosis was rendered. Pain alone can constitute a disability if it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the record fails to show that the claimed right knee symptoms resulted in functional impairment. Range of motion testing, including repetitive motion, resulted in no functional loss at the VA examination and treatment notes do not document any complaint, treatment, or diagnosis for the right knee. Accordingly, the medical evidence does not reflect functional impairment of the right knee. Therefore, the first element of direct service connection—a current disability—is not met with respect to the right knee. Accordingly, the medical evidence does not support the claim as no current disorder is shown. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.