Citation Nr: 20007822 Decision Date: 01/31/20 Archive Date: 01/29/20 DOCKET NO. 09-14 139 DATE: January 31, 2020 ORDER Service connection for obstructive sleep apnea is granted. A 70 percent rating for the Veteran’s depression with panic attacks, posttraumatic stress disorder (PTSD), bipolar disorder, and other service-connected mental disorders, effective as of May 4, 2007, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea began during active service. 2. Throughout the period on appeal, the Veteran’s service-connected mental disorders have resulted in occupational and social impairment with deficiencies in most areas as manifested by such symptoms as near-continuous depression affecting his ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked periods of violence), and difficulty in adapting to stressful circumstances. 3. The severity, frequency, and duration of the Veteran’s mental disorder symptoms did not more closely approximate total occupational and social impairment at any time during the present appeal. CONCLUSIONS OF LAW 1. The criteria to establish service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria to establish a 70 percent disability rating, and no higher, for the Veteran’s service-connected mental disorders, as of May 4, 2007, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the United States Army Reserve from February 1988 to September 1988, and was ordered to active duty from September 1990 to October 1990. He had additional inactive service as a reservist. The Veteran appeared in a September 2012 videoconference hearing before a Veterans Law Judge (VLJ) to present testimony on the issue on appeal. The presiding VLJ from that hearing is no longer employed at the Board and is unable to participate in the decision in this case. The Veteran was informed of this in September 2019 and December 2019 letters. The Veteran was provided with the option to request a new hearing with a different VLJ, and given a 30-day time limit to respond if he wished to exercise this option. More than 30 days have elapsed since the mailing of these letters and no response has been received from the Veteran. Therefore, the Board considers his hearing request withdrawn and will proceed with adjudication pursuant to 38 C.F.R. § 19.3(b) (2018). It is appropriate to provide a brief procedural history here. The Veteran initially sought service connection for a mental disorder, depression due to a service-connected low back injury, on May 4, 2007. Service connection for depression was granted with a 30 percent evaluation effective as of the date of this claim. Rating decision, September 2007. The Veteran did not express disagreement with this initial rating by filing a Notice of Disagreement. However, a few months thereafter, the Veteran submitted a new claim seeking service connection for insomnia and panic attacks, stating his depression disability had increased. Application for Compensation, November 2007. Thereafter, an April 2008 rating decision added panic attacks without agoraphobia to the service-connected mental disability, but continued the prior 30 percent rating. The Veteran disagreed on the matter of an increased rating for his service-connected mental disabilities and perfected the present appeal. During the appeals process, service connection for a sleep disorder including insomnia and sleep apnea was separately addressed as the Veteran contended it was a separate disability. This matter was remanded by the Board for additional evidentiary development in December 2012 and has been returned to the Board for further appellate review. Of note, the Veteran’s sleep impairment as a symptom of his service-connected mental disorders is already included in the mental disability rating. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Subsequently, a June 2014 VA examination diagnosed PTSD and additional mental disorders. As a result, VA added these conditions to the service-connected mental disorders, and the disability rating was increased from 30 percent to 50 percent disabling, effective as of April 9, 2013. Rating decision, August 2014. Thus, from April 2013 until the present, the Veteran’s service-connected mental disorders have included depression, panic attacks without agoraphobia, PTSD, bi-polar disorder, and unspecified obsessive compulsive and related disorder. Nonetheless, as discussed below, the Board finds that regardless of which diagnostic label is associated with a particular diagnosis of mental impairment, the frequency, severity and duration of psychiatric symptoms is the appropriate focus in the evaluation of disability from one or more mental disorders. 38 C.F.R. § 4.126. Moreover, a VA examiner has opined that it is not possible to differentiate which symptoms are attributable to each diagnosis in this case. See, e.g., VA examination, June 2014. In this regard, the Board now considers the Veteran’s psychiatric symptoms regardless of which diagnostic label is applied over the course of the present appeal. 1. Service connection for obstructive sleep apnea is granted. The Veteran asserts that he has a sleep disorder that is secondary or related to his depression. Although it was unclear as to whether the Veteran specifically referred to insomnia, a sleep impairment symptom to be rated as part of his service-connected mental disability, or sleep apnea, he submitted a sleep study showing a diagnosis of sleep apnea at the time. See, e.g., VA Form 9, April 2009. Alternatively, the Veteran contends that his sleep apnea began during his active service. The Board concludes, after careful consideration of all evidence available here, that there is an approximate balance of evidence showing onset of the Veteran’s sleep apnea symptoms during active service versus years after service. Such balance of evidence is a legal condition called equipoise. In such situation, VA must resolve reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records contain no evidence of a diagnosis, treatment, or report of symptoms of sleep apnea. The Veteran left active duty in October 1990. A May 2009 sleep study diagnosed obstructive sleep apnea syndrome. In the sleep medicine new patient questionnaire associated with the sleep study, the Veteran described experiencing sleep problems (snoring, stopping breathing during sleep, waking gasping for air, daytime sleepiness, and difficulty falling asleep or staying asleep) “for about ten years.” This statement is highly probative as it is not associated with the Veteran’s claim for benefits and is associated with obtaining medical care rather than monetary benefits. Given the timeline reported by the Veteran, his sleep problems had onset in or around 1999, many years after he left active service. See Private sleep study, May 2009. However, a February 2013 VA examiner states that during his interview of the Veteran regarding his claim seeking service connection for sleep apnea, the Veteran reported that his apnea, snoring, and daytime sleepiness symptoms began in 1990 while he was in the service. Although neither the examiner nor the Veteran specifically identify the onset of symptoms as occurring during the 1 month and 19 day period of active service in 1990. The examiner states, “I have no reason to disbelieve the Veteran” and asserts that the benefit of the doubt may be due to the Veteran in this case. The Board finds this to equate to a state of equipoise, or a balance between the evidence in support of and against the Veteran’s claim that his sleep apnea arose during active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. A 70 percent rating, and no higher, for the Veteran’s service-connected mental disorders, effective as of May 4, 2007, is granted. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating greater than 30 percent prior to April 8, 2013, and greater than 50 percent thereafter. The Board concludes that the Veteran’s symptoms caused the level of impairment required for a 70 percent disability rating throughout the period on appeal, and did not cause the level of impairment required for a 100 percent rating. In other words, his psychiatric symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In a March 2007 VA treatment note, shortly before filing the present claim, the Veteran described experiencing symptoms of depression, irritability, insomnia, and nightmares. He stated that he felt depressed most days and had crying spells 2-3 times per week. He would socially isolate himself for several days at a time and did not enjoy family time as he should. He had difficulty controlling his temper and admitted shouting at people including co-workers, his wife, and others. The Veteran reported an incident of violence that occurred on the job in which he struck and choked a suspect who smarted off to him, requiring his co-workers to restrain the Veteran. He denied suicidal ideation or feeling helpless or worthless. A VA examination conducted in August 2007 noted that the Veteran experienced symptoms of depression, anxiety, panic attacks, low self-esteem, disturbances of mood, and chronic sleep impairment. The Veteran described feeling quite moody, irritable and demanding with others. The Veteran was employed in a supervisory capacity responsible for over 60 agents. He did not describe any troubles at work, but felt that he was hard on his employees fairly frequently due to his irritability. A March 2008 VA examination reported similar circumstances. The Veteran described himself as “temperamental,” experiencing significant mood swings and panic attacks. He described forgetfulness during conversations or forgetting things such as a combination or PIN code. Nonetheless, he continued to work in the same capacity and denied disciplinary problems or problems with coworkers or supervisors on the job. A January 2013 VA examination found overall 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 that are controlled by medication. However, this is contradicted by other findings within the examination report that report the Veteran had a difficult relationship with his wife due to the Veteran’s changes in mood and irritability. The Veteran described disinterest in socializing with friends, and that he preferred to spend his time alone. He described feeling depressed daily, and experienced panic attacks an average of 2-3 times per week. The Veteran continued his full-time employment, denying problems with coworkers or disciplinary infractions. A June 2014 VA examination reported sleep problems, nightmares, temperament changes, cognitive changes, suspiciousness, emotional blunting, avoidance of social settings, difficulties with relating to others, and ongoing anxiety and panic attack symptoms among others consistent with that reported above. The Veteran again described assaulting another individual, where he “yanked a guy out of his car because he cut me off and flipped me off. I punched him twice in the head and I realized what I was doing. I took off. My wife and daughter were in shock.” VA examination, June 2014. He endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control including unprovoked irritability with periods of violence. Of those, the Board finds the impaired impulse control with periods of violence described as occurring on multiple occasions to be particularly probative. Similar symptoms as those described above are reported in a March 2017 VA examination, with some improvement in mood fluctuations and reduction in flashbacks or nightmares. However, he still dealt with being short-tempered and easily becoming very irritable and angry, describing a recent altercation in a restaurant that ruined his dinner and the remainder of the evening. In sum, he Board finds the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The level of impairment caused by the Veteran’s symptoms also more closely approximates the level associated with a 70 percent rating throughout the appeals period. The Veteran is not shown to have experienced gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, his own occupation or own name, nor other symptoms consistent with this level of impairment. The record also reflects that the Veteran has maintained full-time employment throughout the appeals period. As such, the Board finds that a 100 percent rating based on total occupational and social impairment is not warranted at any time during this appeal. (Continued on the next page)   In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 70 percent disability rating for his service-connected mental disorders, and no higher, is met throughout the appeal. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.