Citation Nr: 21064799 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-21 323 DATE: October 21, 2021 ORDER Entitlement to a rating in excess of 50 percent for major depressive disorder with insomnia disorder, bruxism and residuals of traumatic brain injury (TBI), is denied. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's major depressive disorder with insomnia disorder, bruxism and TBI is manifested by occupational and social impairment with reduced reliability and productivity but does not result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 2. The Veteran does not have hearing loss disability in either ear as defined by VA. 3. The Veteran's current tinnitus is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for major depressive disorder with insomnia disorder, bruxism and TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045; 4.130, Diagnostic Code 9434. 2. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) regional office (RO). 1. Entitlement to a rating in excess of 50 percent for major depressive disorder with insomnia disorder, bruxism and TBI. The Veteran's claim for a compensable rating for residuals of TBI was received on September 23, 2014. A September 2018 rating decision granted the Veteran an increased rating of 50 percent effective from the September 23, 2014 date of claim. The Veteran seeks a rating in excess of 50 percent. The September 2018 rating decision assigned the 50 percent rating after granting service connection for major depressive disorder, insomnia and bruxism, and combining these disabilities as overlapping with the residuals of the TBI. As the record shows that the symptoms of the TBI are not separable from his major depressive disorder, insomnia and bruxism, the RO characterized them as a single disability, and awarded the 50 percent rating under the criteria for major depressive disorder. According to VA's General Rating Formula for Mental Disorders, 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-term 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. A 70 percent rating may be assigned where there is 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; obsessed 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. 38 C.F.R. § 4.130. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA treatment records show that depression screenings in December 2014, February 2016, May 2016, and September 2017 were negative to depression. In February 2015 and December 2016, the Veteran denied having depression. Multiple VA treatment records dated from December 2013 to November 2017 note that the Veteran was well groomed. A May 2016 VA treatment record notes that the Veteran denied any mental health needs. He was appropriately groomed, his thoughts were linear, logical and goal directed. His mood was euthymic. His affect was responsive and consistent with mood. The Veteran was cooperative and there were no reports or evidence of delusions or hallucinations. The Veteran presented with good future orientation and he denied suicidal and homicidal ideation. In November 2017 the Veteran reported that he had a full time job, that he helped out the VFW and that he was active in community. His social support was his friends, neighbors, fiancée, and brother. He stated that he tried to eliminate stressors from his life, but stated that his less than 100 percent disability rating was a stressor. The VA physician noted that the Veteran was able to demonstrate good judgment and reason. The Veteran did not have hallucinations, abnormal affect or abnormal behaviors. He was not suicidal. The Veteran was examined by a VA psychologist in May 2018. She indicated that the Veteran's psychiatric disability, major depressive disorder, resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he worked as a contractor for the Air Force. He said that he had depressed mood and loss of interest in activities most of the day nearly every day. He reported feeling of guilt, insomnia, fatigue and loss of concentration. He denied suicidal or homicidal ideation. He said that he was distressed and fatigued by his sleep problems. He denied panic attacks and uncontrollable worries. On examination his affect was somewhat depressed. He expressed a lot of anger at the VA. He did not display flight of ideas or pressured speech. He did not appear to be experiencing hallucinations. He denied suicidal and homicidal ideation. The examiner noted that the Veteran's psychological and TBI symptoms overlap and that it is not possible to differentiate what portion of each symptom is attributable to each diagnosis. As addressed above, in order for a Veteran to be eligible for a 70 percent rating based on the criteria for psychiatric disability, he must have 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. All of the medical evidence of record indicates that the Veteran has not experienced suicidal or homicidal ideation. None of the evidence indicates that the Veteran has obsessional rituals that interfere with routine activities. Additionally, the Veteran's speech has not been reported as intermittently illogical or obscure. Although the Veteran reported at his May 2018 VA examination that he had depressed mood and loss of interest in activities most of the day nearly every day, the VA treatment records do not reflect such severity. All of the VA treatment records referring to depression indicate that the Veteran denied depressive symptoms. The Veteran does not experience near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. There are no complaints of panic attacks or any other symptoms that affected the Veteran's ability to function independently, appropriately, and effectively. The Veteran is working full time and has not reported any problems at work. The Veteran has always been noted to be well groomed. He has not struggled with impaired impulse control or spatial disorientation. The Veteran did not suffer from psychotic symptoms. With respect to social and occupational interactions, the Veteran does not have an inability to establish and maintain effective relationships as a result of his service-connected disability. As noted above, the Veteran is working full time and has not reported any problems at work. Additionally, he was noted to have a fiancée, to have friends and he reported that he was active in the community and that he helps out the VFW. The evidence clearly shows that he has the ability to establish and maintain effective relationships. The evidence clearly shows that the Veteran does not meet any of the criteria for a 70 percent rating for his major depressive disorder with insomnia disorder, bruxism and TBI based on the criteria for major depressive disorder. Accordingly, a rating in excess of 50 percent for service-connected major depressive disorder with insomnia disorder, bruxism and TBI is not warranted. As noted above, a separate disability rating for the Veteran's TBI is not warranted as the primary symptoms exhibited cannot be separated from his symptoms of major depressive disorder. As explained below the assigned 50 percent rating based on the major depressive disorder criteria results in a higher rating than if the Veteran's major depressive disorder with insomnia disorder, bruxism and TBI was provided a rating based on the TBI criteria. See 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8045; 38 C.F.R. § 4.130, Diagnostic Code 9411. Residuals of TBI are evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. TBI residuals are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," which contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. On VA examination in July 2018 the examiner reported that the Veteran's facet for memory, attention, concentration, and executive functions was 1 (mild impairment). Visual spatial orientation was 1 (mildly impaired). Subjective symptoms were 1 (three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living or work, family, or other close relationships; examples are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). Communication was 2 (inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas). The remaining facets of orientation, judgment, social interaction, motor activity, neurobehavioral effects, and consciousness were 0. The Board notes that the Veteran's physical symptoms of headaches are rated separately as headaches associated with residuals of head injury under Diagnostic Code 8100. The Veteran's currently assigned 30 percent rating for headaches is not currently on appeal. The competent and probative findings on clinical examination of TBI since the Veteran's September 2014 claim for increase show that the Veteran has not manifested with an impairment higher than moderate (level 2 impairment) on any of the relevant facets. Consequently, if his major depressive disorder with insomnia disorder, bruxism and TBI were rated based on the TBI criteria, he would be at most be entitled to a 40 percent rating. Accordingly, he is not entitled to a rating in excess of 50 percent for his major depressive disorder with insomnia disorder, bruxism and TBI under the TBI criteria, 38 C.F.R. § 4.124a, Diagnostic Code 8045. Accordingly, the preponderance of the evidence shows that the Veteran's major depressive disorder with insomnia disorder, bruxism and TBI symptoms have not met the criteria for a rating in excess of 50 percent under any applicable diagnostic criteria at any time during the appeal period. An increased rating in excess of 50 percent for major depressive disorder with insomnia disorder, bruxism and TBI is denied. Service Connection 2. Entitlement to service connection for bilateral hearing loss disability. The Veteran submitted his claim for service connection for hearing loss in June 2012. At a March 2015 VA examination the Veteran asserted that he had hearing loss and tinnitus due to his exposure to acoustic trauma in the Air Force. He reported having a dorm room and an office next to runways. He said that this resulted in his exposure to the noise of jet engines running and of jets taking off. On his April 2017 substantive appeal (VA Form 9), the Veteran asserted that he had bilateral hearing loss due to his exposure to airplane noise while serving on the flight line. To establish service connection a Veteran must generally show: "(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 or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, the diseases must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). In this case, the Veteran was not diagnosed with hearing loss disability in either ear within one year of separation from service. There are also no audiometric reports dated within one year of discharge documenting the presence of hearing loss for VA purposes. As such, entitlement to service connection for bilateral hearing loss on a presumptive basis is not warranted. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) do not contain any complaints of hearing loss. The STRs contain a January 1992 periodic examination report and a February 1995 examination report for separation from service. Both revealed the Veteran to have normal hearing acuity. The STRs include a Report of Medical History (RMH) filled out by the Veteran in February 1995, three months prior to his discharge from service. The Veteran indicated on this form that he had never had hearing loss. On VA audiological examination in March 2015 the Veteran did not meet the VA criteria for impaired hearing in either ear based on auditory thresholds. None of the auditory thresholds at the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz were 26 decibels or greater in either ear. Additionally, the Veteran's speech discrimination scores were recorded as 100 percent in both ears. The VA audiologist stated that the Veteran only had sensorineural hearing loss in the frequency range of 6000 hertz or higher. A review of the record shows that the Veteran has never had an audiology examination that has shown him to have hearing loss disability in either ear as defined by VA. Although the VA audiologist diagnosed the Veteran as having bilateral hearing loss in the higher frequencies, her examination of the Veteran in the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz showed that the Veteran does not have hearing loss disability in either ear as defined by VA. See 38 C.F.R. § 3.385. As the Veteran does not have a hearing loss disability in either ear as defined by VA, service connection for bilateral hearing loss disability is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 3. Entitlement to service connection for tinnitus. The Veteran submitted his claim for service connection for tinnitus in June 2012. As noted above, the Veteran asserts that he now has tinnitus due to his exposure to noise during his 15 years in the Air Force. In this case, the Veteran was not diagnosed with tinnitus within one year of separation from service. As such, entitlement to service connection for tinnitus on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that the evidence of record establishes current tinnitus. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370 (2002). At his March 2015 VA examination the Veteran reported that he developed tinnitus around late 1994, during service. He reported that it was constant in his left ear and intermittent in his right ear. The Veteran's STRs are silent to any complaints of tinnitus. A March 2011 VA medical record notes that the Veteran had no history of hearing loss or tinnitus. A May 2011 VA treatment record notes that the Veteran denied symptoms of hearing loss and tinnitus. A September 2011 VA TBI examination contains the earliest report from the Veteran that he had tinnitus. He reported bilateral tinnitus, left worse than right. The March 2015 VA audiologist opined that the Veteran's current tinnitus is less likely than not related to service. She noted that there was no significant auditory threshold shift during service. She also noted that the Veteran's military occupational specialty (MOS) indicated a low probability for noise exposure. Based on the above, the Board finds that there is no medical evidence relating the Veteran's current tinnitus to service, and there is medical evidence, the March 2015 VA medical opinion, indicating that the Veteran's tinnitus is not related to service. Furthermore, the Veteran's report in March 2015 that he has had tinnitus ever since service is contradicted by the VA treatment records which in March 2011 noted that the Veteran had no history of hearing loss or tinnitus, and in May 2011 noted that the Veteran denied symptoms of hearing loss and tinnitus. The Board places greater probative weight on the contemporaneous medical evidence than the medical history reported by the Veteran years after the fact. The most probative evidence indicates that the Veteran's current tinnitus first developed many years after discharge from service and that it is unrelated to service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim and that service connection for tinnitus is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea. The Veteran submitted his claim for service connection for sleep apnea in November 2014. He asserts that his sleep apnea is caused/aggravated by his service-connected sinusitis. The Board finds that March 2015 and January 2017 VA medical opinions regarding sleep apnea are insufficient and the Veteran's sleep apnea claim must be remanded for another VA examination. The March 2015 VA examination is insufficient because the examiner did not review the private medical records in the file that diagnosed sleep apnea. The January 2017 VA medical opinion is insufficient because the VA examiner did not provide an opinion regarding whether the Veteran's sleep apnea is aggravated by his service-connected sinusitis. The matters are REMANDED for the following action: In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture After obtaining the Veteran's updated VA medical records, afford the Veteran a VA sleep apnea examination to determine the nature and etiology of the Veteran's sleep apnea disorder. The examiner must review the Veteran's claims file, and such review should be noted in the examination report. The VA examiner is asked to discuss the Veteran's service treatment records that contain complaints of sleep problems and daytime sleepiness and provide an opinion as to whether it is at least as likely as not the Veteran's current sleep apnea disorder first developed during service or is otherwise related to service. The examiner is also asked to provide an opinion as to whether it is at least as likely as not the Veteran's current sleep apnea disorder is caused or aggravated (chronically worsened) by the Veteran's service-connected sinusitis. (Continued on the next page) The rationale for all opinions expressed should be provided. If the Veteran fails to report for the examination, the examiner is requested to provide the opinions based on a review of the record. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.