Citation Nr: 21076373 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-41 863A DATE: December 23, 2021 ORDER Entitlement to an initial rating higher than 70 percent for acquired psychiatric disorder, including other specified trauma and stressor related disorder (OSTRD), PTSD, and major depressive disorder, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The evidence is insufficient to establish that the Veteran's service-connected acquired psychiatric disorder manifested in symptoms of a severity, frequency, and duration such that the disability caused total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating higher than 70 percent for service-connected acquired psychiatric disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Board remanded the matter for VA examinations. The Board first adjudicates the Veteran's appeal for an initial rating higher than 70 percent for his service-connected psychiatric disorder. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's 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. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's acquired psychiatric disorder is rated under Diagnostic Code (DC) 9411, which in turn is to be rated under the General Rating Formula for Mental Disorder (General Rating Formula). 38 C.F.R. § 4.130a. Under the General Rating Formula, a rating of 100-percent, which is the highest rating available, is warranted where the disability imposes 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. Id. When evaluating a mental disability, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. An evaluation shall be assigned based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of an examination. 38 C.F.R. § 4.126. Turning to the evidence from the effective date of March 26, 2014, at March and April 2014 VA treatment sessions the Veteran was found to be alert and oriented, with normal speech and normal thoughts, denying suicidal or homicidal ideations, and with normal hygiene. At a May 8, 2014 VA examination, the Veteran reported symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner found his symptoms consistent with depression, such as problems with motivation and not wanting to leave the house. In the past he had "difficulties being angry" and irritated, but he felt the symptom was "much improved on his new medication." During the examination, the Veteran "was noted to become mildly agitated" when discussing one topic. Overall, he was alert and oriented, with normal speech and thought, memory recall three of three times, and denying suicidal or homicidal ideation. A November 7, 2014 letter from a social worker related that the Veteran feels on edge and "always looks for a way out" wherever he is, in addition to isolating and experiencing sleeping problems and low energy. The Veteran continued appearing for treatment at VA facilities throughout 2014, 2015, and 2016. Mental status examinations from all of these sessions found the Veteran alert and oriented, with normal cognitive function and speech, well-groomed, and denying suicidal or homicidal ideation. At a June 10, 2016 treatment session, the Veteran reported having anxiety and sleep disturbances, as well as "over the years . . . occasionally ha[ving] trouble with temper." Another VA examination was provided on June 14, 2016. At that time, the Veteran was found to have symptoms of mild memory loss, suspiciousness, chronic depressed mood, anxiety, and chronic sleep impairment. In the examiner's opinion, the Veteran's disability was creating occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran's social worker submitted another psychiatric impairment questionnaire dated August 16, 2016, which found the Veteran had symptoms including intermittent inability to perform activities of daily living, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, depression affecting the ability to function independently, appropriately, and effectively, neglect of personal appearance and hygiene, deficiencies in family relations, and mood deficiencies. Additionally, she reported the Veteran had difficulty with concentration and following through with tasks, irritability, sleep disturbances, depression, anxiety, and mood changes. She estimated that on average the Veteran's impairments would cause him to be absent from work more than three times a month. Mental status examinations at the Veteran's treatment sessions in 2017 and 2018 were largely normal, with a note of "irritable" mood in March 2018 and a note of "tired and don't wanna do anything" in August 2018. In February 2019, the Veteran was still found to be alert and oriented, with normal thought processes and normal speech, normal attention and concentration, memory intact, and denying suicidal or homicidal ideations. He reported getting along well with his spouse and having recently returned home from a cruise that he enjoyed. On a May 2019 statement, the Veteran wrote that he has "not had any friends for a long time" due to his psychiatric disorder. The Veteran testified at a Board hearing on March 15, 2021. He described avoiding large groups, being easily startled by loud noises, and occasionally being disoriented to time and place, such as "driving [and] all of a sudden . . . I'm someplace that, how did I get here?" He also "forget[s] things that happened recently." At a prior job, he "was a total mess the entire time," including problems interacting with people. Through the years, he had consistently sought treatment, "which helped a bunch," and he was still going every three months. Following the Board's prior June 2021 remand, an updated VA examination was provided on October 14, 2021. Since the most recent VA examination in June 2016, the Veteran reported his depression had greatly improved over time, with current "minimal depression with consistent therapy and medication management." He said that his "[d]epression was much worse shortly after the last exam in 2016 but with help from his VA providers he feels he largely has it under control" now. Regarding irritability and anger outbursts, the Veteran "indicated he does have problems but it has greatly improved with consistent treatment since the last exam"; in the past, he had been experiencing daily anger problems. He still had "trouble remembering what he [is] saying or remembering what someone else has said in conversation." He is jumpy or easily startled in situations, relating an incident at the gun range when he needed to leave after he heard too many gunshots with his back turned. Socially, he stated that "in the past 3 to 5 years it became too stressful at those events [which he formerly used to enjoy] being surrounded by so many people." In crowds, he gets a feeling of anxiety and "has to find a way out." He said his relationship with his wife was "very good, never better" and that he regularly interacted with his wife, son, and daughter. He denied feeling distant or cut off from others. Based on all the evidence of record, the Board finds that an initial rating higher than 70 percent is not warranted. Though the evidence shows that the Veteran has experienced symptoms that affect his cognitive abilities (such as memory loss), emotional functioning (such as depression and anger), and social functioning (such as hypervigilance and struggling with social situations), the Board does not find that these symptoms have been shown to manifest at a severity, frequency, and duration such that they created total occupational and social impairment. Across the appeal period the Veteran regularly attended mental health treatment for these continuing mental health symptoms, but the severity, frequency, and duration were such that they are not akin to symptoms such as gross impairment in or delusional thoughts, grossly inappropriate behavior, persistent danger of hurting himself or others, and memory loss for names of close relatives, his occupation, or his own name. Though the Veteran's social worker indicated in the August 2016 questionnaire that the Veteran had a number of symptoms akin to a more severe disability picture, the evidence on the dates surrounding that period as well as throughout the rest of appeal period does not establish that the Veteran's overall symptomatology, even accounting for the symptoms alleged in the August 2016 report, were such that the Veteran was totally impaired occupationally and socially. 38 C.F.R. § 4.130, General Rating Formula. Accordingly, entitlement to an initial rating higher than 70 percent for the Veteran's service-connected psychiatric disorder is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. REASONS FOR REMAND Regarding the Veteran's claim for service connection for sleep apnea, further remand unfortunately is necessary. Though a VA examination, as directed by the Board's prior June 2021 decision, was provided in July 2021, the examiner concluded that the Veteran's reports of snoring in service were insufficient evidence of a relation of his sleep apnea to service, because "snoring alone is not indicative of sleep apnea without gaspy snores." This opinion failed, however, to consider and discuss the Veteran's statements that very close to the time of his separation in 1979, his wife noticed that he "was waking up in the middle of the night not being able to breathe" and would "stop breathing many times during the night." Given that the examiner did not consider this competent evidence that the Veteran was experiencing symptoms akin to the "gaspy" snores which the examiner indicated are indicative of sleep apnea, the June 2021 VA opinion was not fully adequate, and a new one should be provided. E.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the matter is REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the Veteran's obstructive sleep apnea. The clinician is asked to opine on the following: (a) Was the Veteran's obstructive sleep apnea at least as likely as not incurred in or related to his service? Consider and discuss (i) that the Veteran's wife, who is a nurse, noticed close to the time of the Veteran's separation (estimated by the Veteran to be around one to three years after his separation) that he was waking up out of his sleep unable to breathe, and (ii) that during service the Veteran was told by his shipmates that he had begun snoring. (b) Is the Veteran's obstructive sleep apnea at least as likely as not proximately due to his service-connected psychiatric disorder? Consider and discuss that the Veteran felt that his sleep problems, to include being told he had started snoring, appeared around the same time as he experienced the stressor in service. (c) Is the Veteran's obstructive sleep apnea at least as likely as not aggravated (worsened beyond the normal course of the disease) by his service-connected psychiatric disorder? K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, Associate 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.