Citation Nr: 21062331 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 12-32 431 DATE: October 7, 2021 ORDER The appeal for entitlement to service connection for headaches is dismissed. The appeal for entitlement to service connection for a low back disability is dismissed. The appeal for entitlement to service connection for a right ankle disability is dismissed. The appeal for entitlement to service connection for rhinitis is dismissed. The appeal for entitlement to service connection for a hypertension is dismissed. Service connection for obstructive sleep apnea (OSA) as secondary to the service-connected major depressive disorder (MDD) disability is granted. For the appeal period prior to June 29, 2011, a 70 percent rating, but no higher, for MDD is granted. Beginning June 29, 2011, a 100 percent rating for MDD is granted. For the appeal period beginning June 29, 2011, but no earlier, entitlement to a TDIU solely due to the service-connected MDD disability is granted. For the appeal period beginning June 29, 2011, but no earlier, special monthly compensation (SMC) pursuant to 38 U.S.C. §§ 1114 (s) is granted. FINDINGS OF FACT 1. The Board received notification in March 2021 from the Veteran (through his authorized representative) regarding his desire to withdraw from appeal the issues of entitlement to service connection for headaches, a low back disability, a right ankle disability, rhinitis, and hypertension. 2. The evidence is at least in equipoise as to whether the Veteran's OSA is secondary to the service-connected psychiatric disability. 3. For the appeal period prior to June 29, 2011, the Veteran's psychiatric disability resulted in impairment with deficiencies in most areas, but did not cause total occupational impairment. 4. Beginning June 29, 2011, the Veteran's MDD has been manifested by total social and occupational impairment. 5. The Veteran last worked on June 29, 2011. 6. Beginning June 29, 2011 (the date the Veteran last worked), the Veteran's service-connected MDD alone prevented him from obtaining and/or maintaining substantially gainful employment. 7. Beginning June 29, 2011, the Veteran is in receipt of a TDIU solely due to his service-connected MDD and has additional service-connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal are met as to the claim for service connection for headaches. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal are met as to the claim for service connection for a low back disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal are met as to the claim for service connection for a right ankle disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal are met as to the claim for service connection for rhinitis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal are met as to the claim for service connection for hypertension. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for service connection for OSA as secondary to the service-connected psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. For the appeal period prior to June 29, 2011, the criteria for a 70 percent rating, but no higher, for MDD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 8. For the appeal period beginning June 29, 2011, the criteria for a 100 percent rating for MDD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 9. For the appeal period beginning June 29, 2011, the criteria for entitlement to a TDIU due to the service-connected MDD disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. §§3.102, 3.340, 4.16. 10. For the appeal period beginning June 29, 2011, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114 (s), 5107 (2012);38C.F.R. §3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 2003 to July 2004 with additional periods of active duty for training (ACDUTRA) in the U.S. Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 decision, the Board reopened and remanded the claims for service connection for a right ankle and gastrointestinal disorder. The Board also granted service connection for major depressive disorder. Additionally, the issues for entitlement to service connection for a right ankle disability, service connection for a gastrointestinal disability, service connection for hypertension, service connection for rhinitis, and service connection for sleep apnea were remanded. In December 2017 the Board, in pertinent part, also denied the Veteran's applications to reopen the claims for service connection for left shoulder, low back, and headache disabilities. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In a September 2018 Order, the Court granted a September 2018 Joint Motion for Remand (JMR) signed by both parties and remanded the claim to the Board for action consistent with the terms of the JMR. In a December 2017 rating decision, the RO implemented the Board's grant of service connection for major depressive disorder and assigned a 30 percent evaluation. In a January 28, 2019 rating decision, the RO continued a 30 percent rating for major depressive disorder. Thereafter, in a January 27, 2020, the Veteran filed a Notice of Disagreement with the rating assigned. In a subsequent October 2019 rating decision, the RO assigned a 50 percent rating for major depressive disorder effective March 20, 2019. A Statement of the Case was issued in March 2020, and the Veteran filed a substantive appeal in May 2020. A September 2018 rating decision granted service connection for a gastrointestinal disorder. As such, this issue is no longer on appeal. In March 2019, the Board reopened the claims for service connection for a left shoulder disorder, low back disorder, and headache disorder. The issues were remanded for further development. A subsequent August 2020 rating decision granted service connection for a left shoulder disability; as such, this issue is no longer before the Board for consideration. In a July 2020 supplemental statement of the case (SSOC), the claims for service connection for a right ankle disorder, hypertension, rhinitis, and sleep apnea were readjudicated. A SSOC pertaining to the issues of service connection for a low back disorder and headaches was issues in August 2020. These issues have been properly returned to the Board for adjudication. As it pertains to the claim for entitlement to a TDIU, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Board notes that, although the Veteran has already been awarded a TDIU effective July 28, 2018, this awarded was based on the Veteran's combined service-connected disabilities. See October 2019 rating decision. The grant of a TDIU based solely on one service-connected disability allows for consideration of entitlement to SMC as discussed in detail below; as such, the Board finds that a TDIU based solely on the MDD disability will replace the current award of a TDIU based on multiple service-connected disabilities. Withdrawal of Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In Hembree v. Wilkie, the United States Court of Appeals for Veterans Claims held that written withdrawals of an appeal are governed by the applicable regulations instead of DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (requiring a withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences). See 33 Vet. App. 1, 7 (2020). The applicable regulation is 38 C.F.R. § 19.55, which requires that the withdrawal include the name of the appellant and the file number, and a statement that the appeal is withdrawn. See 38 C.F.R. § 19.55 (b)(1). The Veteran or representative must also specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. Under 38 C.F.R. § 19.55 (c), withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. The Board received notification in March 2021 from the Veteran (through his authorized representative) regarding his desire to withdraw from appeal the issues of entitlement to service connection for headaches, a low back disability, a right ankle disability, rhinitis, and hypertension. The withdrawal included the name of the Veteran, the file number, and a statement that the appeal is withdrawn, specifying the issues withdrawn from the appeal. See Representative's correspondence received March 1, 2021. Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they are dismissed. See Id.; Evans v. Shinseki, 25 Vet. App. 7, 15 (2011). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. OSA The Veteran essentially maintains that his OSA is related to his service-connected psychiatric disability, diagnosed as MDD. Initially, the Board finds that the Veteran has been diagnosed with OSA during the appeal period. See e. g., November 2019 VA sleep apnea examination report. In support of his claim, the Veteran submitted a December 2020 medical report and opinion by Dr. Cesta, specializing in internal medicine, psychiatry and neurology, and addiction medicine. Dr. Cesta indicated that he had reviewed the Veteran's claims file and had personally interviewed the Veteran. A thorough discussion was provided regarding the Veteran's psychiatric and OSA history, symptoms, and treatment. Dr. Cesta then indicated that the "medical literature fully supports a bidirectional potentiating relationship between obstructive sleep apnea and major depressive disorder." Dr. Cesta noted that he had reviewed and referenced (in the report) multiple articles showing the bidirectional relationship between OSA and MDD. It was noted that the Veteran developed MDD years before his diagnosis of OSA in 2008. Recent medical literature supported a "strong clinical correlation" between these two disorders. It was further noted that there was a higher prevalence of depression in patients with OSA and many symptoms of depression and OSA overlapped, causing an under-diagnosis of OSA in depressed patients. Based on these findings, Dr. Cesta opined that the Veteran's depressive and anxiety disorders potentiated the development of his OSA. The Board has reviewed the remaining evidence of record and finds that there are no other medical opinions that are contradictory to Dr. Cesta's findings. See e. g., November 2019 VA medical opinion (noting that OSA was not secondary to rhinitis). Accordingly, and resolving reasonable doubt in the Veteran's favor, service connection for OSA as secondary to the service-connected psychiatric disability is warranted. Disability Ratings Laws and Regulations Disability ratings are determined 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. MDD The Veteran is currently in receipt of a 30 percent rating for MDD for the appeal period prior to March 20, 2019; he is in receipt of a 50 percent rating for the period thereafter. The Veteran's representative has specifically requested that a rating of 70 percent be awarded for the appeal period prior to June 29, 2011 (the date the Veteran last worked). He has also requested that the Veteran be assigned a total (100 percent) rating for MDD beginning June 29, 2011. See March 2021 Appellant Brief at pg. 3. For the reasons discussed below, the Board is granting the requested ratings as set forth by the Veteran's representative. The Board has reviewed the relevant medical and psychiatric evidence of record, including VA examinations conducted in October 2010, March 2012, October 2018, and July 2019. The Board has also reviewed private psychiatric evaluations conducted in June 2018 (Dr. Cervantes), and in December 2020 (Dr. Cesta). VA and Social Security records have also been reviewed by the Board. Throughout the rating period on appeal, and in consideration of the evidence listed above, the Board finds that the Veteran's MDD has consistently been manifested by symptoms of anxiety, irritability, depressed mood, constricted affect, sleep impairment, decreased concentration, difficulty on the job due to poor concentration, dysphoria, social isolation, interpersonal problems with co-workers, mild memory loss, disturbance of motivation and mood, and difficulty in adapting to stressful circumstances. In a June 2018 private psychiatric evaluation from Dr. Cervantes, it was noted that the Veteran had been treated at the clinic since December 2003. The Veteran's diagnosis was noted as "major depression recurrent, severe with mixed features." The Veteran's prognosis was "poor." The Veteran was also noted to require permanent treatment with close supervision for all activities. A more thorough psychiatric evaluation was conducted by Dr. Cesta in March 2021. At that time, it was noted that the Veteran's medical records, service records, VA examination reports, and lay statements had been reviewed in preparation of the psychiatric evaluation. Dr. Cesta provided a detailed discussion of the Veteran's medical chronology. It was further indicated that, after a thorough review of the Veteran's medical record and a comprehensive diagnostic interview, the Veteran had a primary psychiatric diagnosis of "Major Depressive Disorder, Severe, with Mood-Congruent Psychotic Features, with Anxious Distress." Dr. Cesta explained that the Veteran began receiving treatment for mental illness in 2004, shortly after he was discharged from active-duty service. At that time, he had classic signs and symptoms of depression, constricted affect, poor concentration, crying spells, active suicidal ideation with a plan to shoot himself, paranoia, and bizarre behavior, requiring hospitalization. These symptoms began during his active-duty service and became progressive throughout his civilian life. By the point of his discharge, the Veteran was noted to have evidence of intractable mental illness consistent with psychotic depression. He had progressive and persistent symptoms, including anhedonia, hopelessness, helplessness, anxiety, suspiciousness, perceptual alterations, thought disorganization, emotional lability, irritability, and anger. The Veteran also had manifested chronic suicidal ideation, with the Veteran making several specific plans to commit suicide since his discharge from active-duty service. This constellation of symptomatology made it impossible for the Veteran to engage in appropriate social or occupational functioning since 2011. Since his discharge, it was noted that the Veteran had no friends or acquaintances with periods of estrangement from his family. While working as a forest ranger, it was indicated that the Veteran had his weapon removed due to threats to others. He was also transferred to more simple occupational settings. By 2011, the Veteran deteriorated to the point where he could no longer function in a work environment. Since 2011, Dr. Cesta opined that the Veteran had not shown the capacity to participate in a focused and clear manner consistent with task-completion as required in every occupational environment. It was then opined that the Veteran was 100 percent disabled due to his mental health disability since at least 2011. The Board finds the report and medical opinion by Dr. Cesta to be highly probative as to the severity of the Veteran's MDD throughout the entire rating period on appeal. Dr. Cesta reviewed the relevant evidence of record pertaining to the Veteran's mental health history and symptomatology. A thorough discussion of the Veteran's symptoms and occupation and social function was also provided. For these reasons, and in consideration of the medical evidence of record and the opinion from Dr. Cesta, the Board finds that the Veteran's MDD disability (manifested by symptoms of suicidal ideation, near-continuous depression, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships) more nearly approximated the criteria for a 70 percent disability rating prior to June 29, 2011. The Board finds that a higher rating in excess of 70 percent for the period prior to June 29, 2011 is not warranted as the evidence demonstrates that the Veteran was employed full time prior to that datei.e., the Veteran's MDD did not cause total occupational impairment prior to June 29, 2011. That notwithstanding, the Board finds that a 100 percent rating for MDD is warranted beginning June 29, 2011 (the date the Veteran last worked). As opined by Dr. Cesta, by 2011, the Veteran deteriorated to the point where he could no longer function in a work environment. Since 2011, Dr. Cesta opined that the Veteran had not shown the capacity to participate in a focused and clear manner consistent with task-completion as required in every occupational environment. Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board find that a 100 percent rating for MDD is warranted beginning June 29, 2011. Entitlement to a TDIU Beginning June 29, 2011 After careful consideration of the record, to include both the lay and medical evidence, the Board resolves any reasonable doubt in the Veteran's favor and finds that he is deemed unemployable solely by reason of his service-connected PTSD for the period on appeal from June 29, 2011. The evidence shows that the Veteran last worked on June 29, 2011. See December 2020 VA Form 21-8940. Next, and as discussed in detail in the previous section, Dr. Cesta opined that, since 2011, the Veteran had not shown the capacity to participate in a focused and clear manner consistent with task-completion as required in every occupational environment. It was then opined that the Veteran was 100 percent disabled due to his mental health disability since at least 2011. In a June 2019 VA psychiatric examination report, the examiner indicated that the Veteran's mood instability limited his capacity to interact effectively and on a sustained basis with other individuals. Social functioning at work environment that involved interaction with the public, responding appropriately to persons in authority, or cooperative behaviors involving co-workers was also limited. Based on the foregoing, and with resolution of all reasonable doubt in favor of the Veteran, a TDIU is warranted for the appeal period from June 29, 2011, as the evidence demonstrates the Veteran had been unable to secure or maintain a substantially gainful occupation due solely to his service-connected MDD disability. Therefore, the Veteran's TDIU claim is granted from June 29, 2011. 38 C.F.R. § 4.16. Special Monthly Compensation - Laws and Analysis The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, the Board notes that as a result of this decision, a TDIU due to the Veteran's service-connected MDD has been granted for the rating period on appeal from June 29, 2011. Thus, for SMC purposes, this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e., his TDIU due solely to service-connected MDD), and has additional service-connected disabilities (i.e., gastroduodenitis, right knee ostearthritis, left shoulder tendonitis, tinnitus, and GERD) that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met for the rating period on appeal from June 29, 2011. Therefore, in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is granted for the rating period on appeal from June 29, 2011. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.