Citation Nr: 21070822 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-11 931 DATE: November 26, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. A 70 percent rating, but no higher, for depressive disorder is granted. A rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) is granted. A rating in excess of 40 percent for fibromyalgia is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's OSA is aggravated by the service-connected psychiatric and GERD disabilities. 2. The Veteran's depressive disorder has been productive of occupational and social impairment in most areas, but has not been manifested by total social impairment. 3. The Veteran's GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, melena, substernal arm or shoulder pain, and sleep disturbance, which is productive of considerable impairment of health. 4. The Veteran is in receipt of the maximum schedular rating for fibromyalgia, and there is no indication of symptoms or effects not contemplated by the rating schedule. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for OSA, as secondary to the service-connected psychiatric and GERD disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a 70 percent rating, but no higher, for depressive disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for a rating of 30 percent, but no higher, for GERD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. 4. The criteria for a rating in excess of 40 percent for fibromyalgia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.71a, Diagnostic Code 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to January 1999 and from April 2000 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and September 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board in august 2019 for the issuance of a Supplemental Statement of the Case. This action has been completed and the case has been returned to the Board for adjudication. 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). 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 Initially, the Board finds that the Veteran has been diagnosed with OSA. See April 2015 polysomnographic study from the Westside Presbyterian Sleep Disorders Center. The Veteran is currently service connected for various disabilities, including depressive disorder and GERD. See April 2021 rating decision codesheet. Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran's OSA is aggravated by her service-connected disabilities. The evidence includes a July 2018 OSA disability Benefits Questionnaire and medical opinion by Dr. Blevins. At that time, a diagnosis of OSA was confirmed. Dr. Blevins reviewed the medical evidence of record and indicated that a February 2018 VA examination report noted sleep disturbance associated with the Veteran's GERD disability. Sleep disturbance was also noted in a May 2018 VA psychiatric examination. Medical research was also referenced and indicated that psychiatric disorders were commonly associated with OSA. During the evaluation with Dr. Blevins, the Veteran also stated that she frequently could not use her CPAP machine due to her depressive disorder and GERD. Specifically, the Veteran stated that, due to her depression, the CPAP machine made her feel "trapped and anxious" and she could not tolerate using the equipment. She also reported symptoms of GERD and frequently waking up choking while waring the CPAP. This inability to consistently use the CPAP machine was noted to greatly aggravate the effects of her OSA. As such, Dr. Blevins opined that the Veteran's service-connected depressive disorder and GERD permanently aggravated her OSA. VA treatment records also confirm the Veteran's difficulties using her CPAP machine due to her service-connected GERD disability. See e. g., March 2021 VA primary care note (Veteran reported not using CPAP due to "GI issues." The Board finds that the Veteran's service-connected psychiatric and GERD disabilities have been shown to negatively impact the Veteran's ability to consistently use her CPAP machine. The Board further finds that this disruption in treatment reasonably would aggravate her diagnosed OSA. The Board notes that in Ward v. Wilkie, the United States Court of Appeals for Veterans Claims held that, for secondary service connection, "aggravation" need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds the criteria to establish service connection for OSA as secondary to the service-connected psychiatric and GERD disabilities are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The appeal is granted. Disability Ratings Laws and Regulations Disability evaluations 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 his 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Depressive Disorder The Veteran's major depressive disorder is currently rated at 50 percent according to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is granted when 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; 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 work like setting); and inability to establish and maintain effective relationship. Id. A 100 percent disability rating is justified 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant's impairment must be "due to" those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118 ; Mauerhan, 16 Vet. App. at 442. The relevant evidence of record includes a June 2018 mental disorders disability benefits questionnaire, completed by Dr. Cady, a board-certified psychiatrist. Dr. Cady reviewed the claims file and interviewed the Veteran. During the evaluation, Dr. Cady confirmed a diagnosis of depressive disorder with anxious distress features. The Veteran's symptoms were noted to include depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, impaired abstract thinking, gross impairment in thought process, disturbance of motivation and mood, difficulty in establish and maintaining relationships, difficulty adapting to stressful circumstances, obsessive rituals, impaired impulse control, neglect of personal hygiene, and intermittent inability to perform activities of daily living. Dr. Cady specifically opined that the Veteran's depressive disorder disability was consistent with occupational and social impairment with deficiencies in most areas (i. e., a 70 percent rating). VA examination reports conducted in April 2015, February 2018, May 2018, and July 2019 show similar psychiatric symptoms, including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, flattened affect, difficulty in establish and maintaining relationships, difficulty adapting to stressful circumstances, and obsessive rituals (such as checking doors, locks, and alarm frequently with fear for safety). See e. g., February 2018 VA examination report. Notably, May 2018 and July 2019 VA psychiatric examination reports found that the Veteran met the criteria for a 70 percent rating. Upon review of all the evidence of record, both lay and medical, the Board finds that, for the entire initial rating period on appeal, the Veteran's depressive disorder more nearly approximates a 70 percent disability rating. The Board has reviewed the statements from the Veteran's family and medical providers and finds that the Veteran's reported symptoms have remained relatively consistent throughout the appeal period. For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that a 70 percent evaluation is warranted for the entire increased rating period on appeal. However, a rating in excess of 70 percent is not warranted because the evidence does not reflect that the Veteran's depressive disorder has caused total social impairment. The Veteran has remained married and has reported a good relationship with her spouse and children. She has also indicated volunteering at her church, writing children's books, and being involved in a non-profit organization. See e. g., February 2018 VA examination report. The record also reflects an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) with the Veteran periodically failing to maintain personal hygiene. However, the evidence shows the Veteran's periodic inability to maintain personal hygiene does not cause total impairment as she generally maintains her hygiene for matters of importance to her. See e. g., February 2018 and July 2019 VA examination reports. For the above reasons, total occupational and social impairment is not demonstrated by the record, and a 100 percent rating for the Veteran's depressive disorder is not warranted. GERD The Veteran maintains that her GERD disability is more severe than what is contemplated by the currently assigned 10 percent rating. The Veteran's GERD is rated under Diagnostic Code (DC) 7346 for hiatal hernia. 38 C.F.R. § 4.114, DC 7346. Under DC 7346, symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health warrant a 60 percent rating. Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, warrants a 30 percent rating. Two or more of the symptoms for the 30 percent rating of less severity warrant a 10 percent rating. 38 C.F.R. § 4.114, DC 7346. The evidence includes VA examination reports conducted in September 2014, April 2015, February 2018, May 2018, April 2021. These reports indicate various symptoms of GERD to include persistent recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, substernal arm pain, sleep disturbance, nausea, and vomiting. The Veteran requires the continuous use of medication to treat her symptoms. The Veteran's GERD was also noted to impact her occupational productivity and efficiency (i. e., pain, bloating, requires frequent bathroom breaks, inability to keep food down, and bad breath odor). Upon review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's GERD more nearly approximates a 30 percent rating under Diagnostic Code 7346. The Veteran has been found to have numerous symptoms of GERD. Additionally, the Veteran's sleep impairment due to GERD would likely result in some considerable impairment of health, as required for an increased 30 percent rating under Diagnostic Code 7346. See e. g., VA treatment record dated January 2019 (Acid reflux noted to be worse at night). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating for GERD is warranted for the entire rating period on appeal. The Board next finds that a higher rating of 60 percent is not warranted, as the evidence of record does not support findings consistent with hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The evidence does not show that the Veteran have anemia or material weight loss as a result of his GERD disability. In a September 2020 brief, the Veteran's representative did not address or present argument as to the issue regarding the GERD rating. None of the VA examination reports listed above indicated that the Veteran's GERD was productive of severe impairment of health. Accordingly, a rating in excess of 30 percent for GERD is not warranted at any time during the appeal period. Fibromyalgia Throughout the appeal period, the Veteran has been in receipt of a 40 percent (maximum) schedular disabling rating. Fibromyalgia is rated under Diagnostic Code 5025, which provides a maximum 40 percent disability rating when fibromyalgia manifests with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, that is constant, or nearly so, and refractory to therapy. "Widespread pain" means pain in both the left and right sides of the body that is both above and below the waist, and that affects both axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5025. As the Veteran is in receipt of the maximum schedular rating for the entire period on appeal, there is no legal basis for awarding a higher schedular rating for fibromyalgia. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In a September 2020 brief, the Veteran's representative did not address or present argument as to the issue of fibromyalgia. The Veteran has not alleged that an extraschedular rating is warranted for his fibromyalgia and such was not reasonably raised by the record. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND TDIU The Veteran is seeking entitlement to a TDIU based on all of her service-connected disabilities, which now include OSA. See Veteran's VA Form 21-8940 (noting that she was unable to obtain or maintain employment due to "all" service-connected disabilities). As such, the TDIU claim is inextricably intertwined with the Board's grant of service connection for OSA in this decision and the pending assignment of its corresponding rating percentage and effective date by the Agency of Original Jurisdiction (AOJ). Consideration of the TDIU must be deferred pending implementation of the award granted herein. The matters are REMANDED for the following action: 1. The Board's decision herein should be implemented by the AOJ, including assigning a disability rating and effective date for the now service-connected OSA disability. The Veteran and his representative should be properly notified thereof and of his appellate rights. 2. Then, readjudicate the claim for entitlement to a TDIU. 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.