Citation Nr: 21000925 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-19 083 DATE: January 6, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to a disability rating higher than 70 percent for major depressive disorder is denied. FINDINGS OF FACT 1. The Veteran’s service-connected gastroesophageal reflux disease (GERD) and major depressive disorder aggravate his sleep apnea. 2. The Veteran’s major depressive disorder has produced occupational and social impairment, with deficiencies, but has not produced, approached, or approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. Sleep apnea is aggravated by service-connected disorders. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.310 (2019). 2. The criteria for a disability rating higher than 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1975 to July 1995. In May 2013 he submitted a claim for service connection for sleep apnea. In a January 2014 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for sleep apnea. In March 2014 the Veteran submitted a claim for service connection for depression. In a June 2014 rating decision, the RO denied service connection for depression. The Veteran appealed both of those denials to the Board of Veterans’ Appeals (Board). In an April 2016 rating decision, the RO granted service connection for a mood disorder. The RO assigned a disability rating of 70 percent. The Veteran appealed that rating to the Board, seeking a higher rating. In November 2018, the Board remanded to the RO, for further action, the issues of service connection for sleep apnea and a higher rating for the mood disorder. The Board found that the record raised a claim for a total disability rating based on individual unemployability (TDIU). The Board added a TDIU claim to the issues on appeal and remanded that issue to the RO for further action. In a June 2020 rating decision, the RO granted the Veteran a TDIU. In addition, the RO recharacterized the Veteran’s service-connected mental disorder from mood disorder to major depressive disorder. In July 2014 the Veteran appointed a private attorney as his representative in his VA compensation and pension claims. In a September 2020 letter, that attorney informed VA that he was withdrawing from representing the Veteran. In a November 2020 letter, the Board informed the Veteran of the attorney’s withdrawal, and of his options regarding representation. The Veteran has not communicated further about representation. The Board concludes that presently he does not have representation. 1. Service connection for sleep apnea The Veteran reports that during service he had sleep apnea symptoms. He contends that those symptoms were manifestations of his sleep apnea that was diagnosed after service. He also contends that his sleep apnea is aggravated by his service-connected disorders, particularly his GERD and his major depressive disorder. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The Board notes that secondary service connection on the basis of aggravation may only be granted when there is an increase in severity of the nonservice-connected beyond a medically established baseline due to the service-connected disability. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran’s service treatment records (STR) reflect treatment for nose and sinus congestion, with assessments including upper respiratory infection, sinusitis, and viral syndrome. In October 1988 he reported headache and nasal congestion. He stated that headache made him unable to sleep. On retirement examination in November 1994, the Veteran marked yes for history of sinusitis, hay fever, and shortness of breath. He marked no for history of frequent trouble sleeping. The examiner marked normal for the conditions of his nose, sinuses, and throat. In February 1996, soon after the Veteran’s separation from service, he sought service connection for GERD. The RO established service connection for his GERD effective directly following his separation from service. In July 2009, the Veteran had private treatment for dyspnea on exertion. He weighed 274 pounds, which the physician characterized as obesity. The physician stated that his dyspnea might be due to his weight. The July 2009, a physician noted that the Veteran’s history revealed possible sleep apnea. In August 2009, the physician stated that a sleep apnea screening test showed abnormal findings. The Veteran reportedly declined further sleep testing because did not want to wear a CPAP. In private treatment in January 2012, the Veteran’s diagnoses included sleep apnea. The Veteran sought service connection for depression in 2014. The RO eventually granted service connection, effective from 2014, for a mood disorder. In September 2014 private physician C. W. C., M.D., completed a VA disability benefits questionnaire (DBQ) regarding the Veteran’s sleep apnea. The Veteran reported that his sleep apnea began while he was still in service. He related that presently he awakened at least four to five times a night. He reported chronic insufficient sleep and resulting fatigue. Dr. C. found that from 2009 the Veteran was found to have sleep apnea, GERD, and insomnia. Dr. C. expressed the opinion that the Veteran’s “sleep apnea is more likely aggravated by his service connected gastroesophageal reflux and service connected depression.” In May 2016 a VA physician reviewed the Veteran’s claims file. The reviewer noted that the file contained medical records that mentioned sleep apnea but did not contain any sleep study. The reviewer opined that, without a sleep study, there was insufficient information to diagnose sleep apnea. In August 2018 the Veteran had a private sleep study. The physician diagnosed obstructive sleep apnea. On VA examination in November 2019, the Veteran reported that in 2009 he first sought medical evaluation for snoring and breathing lapses during sleep. The examining nurse practitioner reviewed the Veteran’s claims file. The examiner expressed the opinion that it is at least as likely as not that the Veteran’s sleep apnea was aggravated by his GERD. In explanation, the examiner cited medical research on relationships between GERD and sleep apnea. On VA examination in April 2020, the Veteran reported sleep apnea symptoms beginning in 1994, while he was in service. The examining physician assistant expressed the opinion that it is less likely than not that the Veteran’s sleep apnea was incurred in service. In explanation, the examiner notes that the Veteran’s STR did not reflect any complaints that might indicate sleep apnea. The examiner also opined that the Veteran had no service-connected conditions that are medically accepted as being causative factors for obstructive sleep apnea. The Veteran’s STR reflect respiratory symptoms, without any workup for or diagnosis of sleep apnea. The symptoms reported in service did not include snoring or breathing lapses during sleep. As the respiratory symptoms his STRs reflect were not the symptoms most directly associated with sleep apnea, the evidence from the time of service does not help to show onset of sleep apnea in service. Clinicians have provided differing opinions as to the likelihood that the Veteran’s service-connected disorders caused or aggravate his sleep apnea. Private physician Dr. C. opined in 2014 that the Veteran’s sleep apnea is more likely aggravated by his service-connected GERD and his service-connected depression. As Dr. C. did not explain his opinion, it is difficult to judge the persuasive weight of the opinion. Nonetheless, as a physician, he is competent to opine on the aggravation question. The opinion has evidentiary weight. The November 2019 VA examiner considered medical research and found it at least as likely as not that the Veteran’s GERD aggravates his sleep apnea. That opinion weighs in favor of service connection based on aggravation. The VA physician assistant who examined the Veteran in April 2020 found it less likely than not that the Veteran’s sleep apnea was caused by any service-connected disorder. In explanation, the examiner stated that the Veteran had no service-connected conditions which are medically accepted as factors in causing obstructive sleep apnea. The examiner explained the mechanism of sleep apnea. However, the examiner did not directly discuss GERD or depression, or whether either can aggravate sleep apnea. The opinions of Dr. C. and the 2019 VA examiner support the Veteran’s contention that his service-connected disorders, including GERD and depression, aggravate sleep apnea. The 2020 VA examiner’s opposing opinion is less relevant and specific on the question of secondary aggravation. The evidence for aggravation is at least as persuasive as the opposing evidence. Resolving reasonable doubt in the Veteran’s favor, the Board accepts that his GERD and depression aggravate his sleep apnea, and grants service connection for his sleep apnea. The rating activity will determine the baseline and current levels of severity under the Rating Schedule and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 2. Disability rating for major depressive disorder The Veteran appealed the initial 70 percent disability rating that the RO assigned, effective in March 2014, for his major depressive disorder. The RO granted service connection for his major depressive disorder as associated with his service-connected chronic intermittent relapsing low back strain. VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, 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. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule includes a General Rating Formula for Mental Disorders, including major depressed disorder. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Under that formula, the maximum rating is 100 percent, which is assigned when there is 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. A 70 percent rating is the next lower rating under the schedule. It is assigned 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 worklike setting); inability to establish and maintain effective relationships. In September 2014, private psychologist H. H.-G., Ph.D., evaluated the Veteran. The Veteran reported that he worked lieutenant in detentions, for a county sheriff department. He stated that he lived with his wife and grown children. He related that he was socially isolated and withdrawn. He indicated that he kept his struggles to himself, to avoid burdening other. He stated that he could no longer enjoy even the simplest of activities. Dr. H.-G. observed that the Veteran was vague, irritable, cautious, and somewhat despondent. The Veteran had delayed speech flow, variable concentration, appropriate thought content, and average judgment. The Veteran did not report overt delusions. Dr. H.-G. summarized that the Veteran’s mood disorder produced occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Dr. H.-G. stated that the Veteran’s symptoms included: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Dr. H.-G. found that the Veteran worked full time and received no accommodations. Dr. H.-G. found that his mood disorder caused him to struggle to handle the stress of a competitive work environment. Dr. H.-G. indicated that the Veteran’s mood disorder would cause him to miss one day of work per month, to be unable to focus for most of the day more than three days per month, and to respond angrily, but not violently, more than once per month. In January 2019 the Veteran wrote that he left his employment in 2015. He stated that he was unable to continue in that employment due to depression, anxiety, anger, flashbacks, and nightmares. The Veteran had a VA mental disorders examination in June 2020. The Veteran reported anxiety, nightmares, and memory impairment. He stated that in 2015 he retired from corrections work. He indicated that he stopped working because he could no longer handle it. He stated that he lived with his wife and grown children. He stated that his wife had stopped sleeping in the same room, in part because he almost hurt her when he was dreaming. He related being angry with his wife and sometimes yelling. He reported having anger management counseling. He stated that he had some contact with friends and was involved in church activities. The examiner observed that the Veteran was oriented, with normal thought process and content, mildly dysphoric affect, and unremarkable speech. The examiner summarized that the Veteran’s major depressive disorder produced occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner stated that the Veteran’s symptoms included: depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; flattened affect; mild memory loss; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner found that the Veteran’s major depressive disorder would produce deficiency in an occupational environment. The Veteran’s accounts and examination findings have presented a fairly consistent picture of the Veteran’s disability due to his major depressive disorder has produced occupational and social impairment that is less than total. He credibly reports that he left his employment in 2015 because depressive disorder symptoms, including depression, anxiety, anger, flashbacks, and nightmares, made him unable to continue working. However, he has not reported, and examiners have not observed, more severely impairing symptoms such as gross impairment in thought or communication, delusions, grossly inappropriate behavior, persistent danger to self or others, inability to maintain hygiene, disorientation, or severe memory loss. The severity, frequency, and duration of the Veteran’s symptoms has not approached total occupational and social impairment. The severity, frequency, and duration of his symptoms has not approximated total occupational and social impairment more closely than occupational and social impairment with deficiencies in most areas. Based on the preponderance of the evidence, the Board denies a rating higher than 70 percent. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kunz, Kirsten 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.