Citation Nr: 21063546 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-48 399 DATE: October 14, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to a 70 percent rating, but no higher, for an acquired psychiatric disorder, to include major depressive disorder, unspecified anxiety disorder, dysthymia, and insomnia is granted. FINDINGS OF FACT 1. The preponderance of the competent medical evidence does not demonstrate that the Veteran's obstructive sleep apnea was incurred in service or was otherwise attributable to the Veteran's service. 2. For the entire period on appeal prior to his passing, the Veteran's psychiatric disorder was been shown to be productive of a disability picture that equated to occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; difficulty in adapting to stressful circumstances, sleep disturbances; disturbances of motivation and mood; impulse control, and difficulty in establishing and maintaining effective relationships; however, he did not exhibit total occupational and social impairment at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1116, 1137; 38 C.F.R. § 3.303. 2. The criteria for a disability rating of 70 percent, and no higher, for the Veteran's acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.14, 4.40, 4.59, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to September 1986 and from December 1987 to March 2006. These matters were last before the Board in March 2019, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. The Veteran passed away in September 2019 while the appeal was under the jurisdiction of the AOJ. The Appellant is his surviving spouse and is substituted for him in this case. In view of this substitution, this case need not be considered on an accrued benefits basis. Following the issuance of a November 2020 supplemental statement of the case, these matters were returned to the Board for its adjudication. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for dysthymia as one for an acquired psychiatric disorder, to include major depressive disorder, unspecified anxiety disorder, dysthymia, and insomnia. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability is either raised expressly or by the record. A review of available VA medical records indicates that the Veteran was unemployed during the appeal period and at the time of his passing. However, there is no indication that he ever attributed his unemployability to his service-connected acquired psychiatric disorder. Furthermore, as will be discussed below, the December 2015 VA examiner who evaluated the severity of the psychiatric disorder did not find that it wholly precluded the Veteran from securing and following substantially gainful employment. Accordingly, a claim for TDIU has not been raised by the record. Entitlement to Service Connection for Obstructive Sleep Apnea The Appellant seeks service connection for obstructive sleep apnea, which she contends generally was attributable to the Veteran's service. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Accordingly, the question for the Board is whether the Veteran had diagnosable obstructive sleep apnea that was incurred in service or was otherwise attributable to an in-service injury, event, or disease. After a review of the claims file, the Board concludes that, while the Veteran was diagnosed with obstructive sleep apnea during the appeal period prior to his passing, the preponderance of the evidence is against a determination that the condition began during active service, or was otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (b), (d). A review of available service treatment records does not reflect any specific treatment for obstructive sleep apnea or symptomatology that may suggest that a diagnosis of the condition would have been appropriate. Although the Veteran did note a history of having frequent difficulty sleeping on the January 2006 Report of Medical History, which he completed at the time of his separation, this notation was included under the group of symptoms attributed to mental health and psychiatric issues. Furthermore, there is no indication that the Veteran exhibited any symptomatology reflecting sleep apnea on the associated January 2006 separation examination. Post-service, VA medical records do not indicate that the Veteran was diagnosed with or received any treatment for obstructive sleep apnea until the results of a March 2015 sleep study confirmed that he had the condition. Subsequent VA medical records show that he was prescribed and continued to use a continuous positive airway pressure (CPAP) machine with varying degrees of effectiveness up to the time of his passing. At no point during the Veteran's lifetime did any VA treating medical professional ever associate his sleep apnea with his service. The Veteran was not afforded an examination in connection with his obstructive sleep apnea service connection claim prior to his passing, but VA did not have a duty to provide one prior to his death, and it currently does not have a duty to attempt to procure one as well, as there is no indication that the sleep apnea may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Neither the Veteran nor the Appellant as substitute presented any competent evidence or testimony in support of the claim, and there are no records of the Veteran receiving a diagnosis of or treatment for the condition prior to 2015. There is simply no competent evidence to support that the condition first diagnosed nearly 10 years after the Veteran's discharge is related to service. Neither the Veteran nor the Appellant's potential lay assertions as to the onset and etiology of the sleep apnea constitute competent evidence, as there is no documentation that the Veteran had or the Appellant has medical training or credentials. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, there was no duty to provide the Veteran with an examination to evaluate the etiology of his sleep apnea prior to his passing, and there is no duty to attempt to procure at least an etiology opinion currently. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for obstructive sleep apnea. The Board acknowledges that the Veteran was diagnosed with sleep apnea in 2015 and continued to be treated for the condition until his passing. Furthermore, he clearly intended to seek benefits for the condition despite providing any actual testimony regarding his beliefs as to why it was attributable to service. The Veteran was competent to testify as to when his symptoms began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, his contentions and the contentions of the Appellant in substitution must be considered in light of the objective medical evidence of record, or lack thereof. The fact remains that the claims file does not contain a diagnosis of obstructive sleep apnea until March 2015, nearly 10 years after the Veteran was discharged from service. This is persuasive evidence tending to demonstrate that there is no continuity of symptomatology after service. Neither the Veteran nor the Appellant provided any objective medical evidence in support of the general contention that the obstructive sleep apnea was attributable to service. Therefore, the preponderance of the evidence is against the Appellant's service connection claim for obstructive sleep apnea on a direct basis under 38 C.F.R. § 3.303(a) and also as a post-service manifestation under 38 C.F.R. § 3.303(d). Consequently, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to an Increased Rating for an Acquired Psychiatric Disorder At the time of his passing, the Veteran was service connected for an acquired psychiatric disorder, characterized variously as major depressive disorder, unspecified anxiety disorder, and dysthymia, with a disability rating of 30 percent effective August 24, 2015. The Appellant as his substitute seeks an increased rating for the entire period of the appeal. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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. See 38 C.F.R. § 4.7. The rating at issue was assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the General Rating Formula, a rating of 30 percent is warranted if there is 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, or 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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 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 work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran was afforded a VA examination to evaluate the severity of his acquired psychiatric disorder in December 2015. He reported a history mental health treatment beginning in service and continuing intermittently since his discharge. He acknowledged that he spent 10 days in a mental hospital for suicidal ideation in his past. After an in-person evaluation, the examiner set-forth diagnoses of dysthymia and adjustment disorder with mixed anxiety and depressed mood. According to the examiner, the dysthymia had existed for many years and accounted for the majority of the Veteran's depression. On the other hand, the adjustment disorder was a more recent manifestation that was associated more with anxiety over his other medical issues. The examiner then noted the following symptoms: depression, anxiety, suspiciousness, and chronic sleep impairment. It was also noted that the Veteran expressed irritability and complained in general about medical professionals. In summation, it was the examiner's opinion that the condition contributed to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A review of the Veteran's post-service VA medical records shows that he denied experiencing depression when he began receiving medical care through VA and underwent an initial screening in November 2012. Thereafter, a May 2013 outpatient note reflects that the Veteran's friend brought him in for admission after the Veteran told him that he was experiencing suicidal ideation. After an in-person evaluation, the Veteran was diagnosed with a depressive disorder. Following an extended hospital admission, he was released and began regular psychiatric treatment through VA. Subsequent VA medical records show that the Veteran reported experiencing episodes of an altered mental state at various points in time between his May 2013 psychiatric hospital admission and his passing in November 2019. A January 2015 outpatient record indicates that the Veteran awoke speaking non-sensibly with paranoid thoughts of people attempting to kill him. The Veteran underwent a mental health evaluation in August 2019, so only a few months before his passing, during which it was noted that he was remaining compliant with his medications and was regularly attending therapy sessions through VA. The diagnoses at the time of the evaluation were major depressive disorder, unspecified anxiety disorder, substance abuse disorder, and insomnia. The examiner also noted that the Veteran was facing some legal issues due to his assaulting his daughter in 2017. However, at the time of the evaluation it was the examiner's impression that the Veteran did not pose a significant harm to himself or others. Upon review of the evidence, the Board finds that the Veteran met the criteria for a 70 percent rating, but no more, for the entirety of the appeal period. To begin, the Board notes that the Veteran has experienced suicidal ideation and was admitted psychiatrically in May 2013 when he expressed his intention to harm himself. Furthermore, records subsequent to that hospital admission reflect that the Veteran exhibited paranoid thoughts, irritability, sleeping difficulties, anxiety, and depression that significant impaired his occupational and social functioning. That being said, the preponderance of the evidence is against a determination that the Veteran experienced total occupational and social impairment as due to his acquired psychiatric disorder at any point prior to his passing. There is documentation from the Veteran's VA medical records showing that he did still engage in social activities, maintained friendships with a small group of people, and stayed married to the Appellant up to the date of his passing. He also regularly attended both group and individual therapy sessions at his local VA medical center and was noted to maintain a baseline level of mental health. For these reasons, the Board does find that a total rating is not warranted for the acquired psychiatric disorder at any point during the appeal period, as the record does not demonstrate gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, the Veteran's own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. Accordingly, the Board finds that a rating of 70 percent, but no more, is warranted for the entire appeal period. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.