Citation Nr: 21012854 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 20-29 177 DATE: March 5, 2021 ORDER A 100 percent rating for unspecified bipolar and related disorder, for the period prior to September 12, 2019, is granted. Service connection for gout is granted. Service connection for sleep apnea is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s unspecified bipolar and related disorder has been characterized by persistent danger of hurting self or others, suicidal ideation, intermittent inability to perform activities of daily living, neglect of personal appearance and hygiene, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, impaired judgement, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. 2. The Veteran’s gout had its onset during service or is otherwise related to service. 3. The Veteran’s sleep apnea had its onset during service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a total disability rating for unspecified bipolar and related disorder, for the period prior to September 12, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for service connection for gout have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 2006 to August 2012. These matters come before the Board of Veterans’ Appeals (Board) from a December 2018 rating decision. The Veteran testified before the Board at a hearing in December 2020. A transcript of the hearing has been associated with the claims file. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. 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). Unspecified Bipolar and Related Disorder Ratings for psychiatric disabilities are assigned under 38 C.F.R. § 4.130, DC 9411. The Veteran is currently assigned a 70 percent rating for the period prior to September 12, 2019, and a 100 percent rating for the period thereafter. Under DC 9411, for the 70 percent rating criteria, the evidence must show 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, DC 9411. A 100 percent rating is warranted for 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; 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. The Board has reviewed the evidence of record and finds that a total disability rating for unspecified bipolar and related disorder, for the period prior to September 12, 2019, is warranted. First, the Veteran provided credible testimony at the hearing before the Board in December 2020 regarding his claim of an increased rating for unspecified bipolar and related disorder, for the period prior to September 12, 2019. The Veteran stated that although he was awarded a total disability rating effective September 12, 2019, the date of his most recent VA psychiatric examination, his symptoms related to his psychiatric disability began to worsen prior to that date. Specifically, the Veteran stated that in 2017 following a routine medical appointment he was hospitalized for acute psychiatric symptoms including suicidal ideation. Additionally, the Veteran stated that regarding his employment during that time period due to his psychiatric symptoms and hospitalizations he was required to use all available leave, incur a negative balance of 142 hours of leave, and use leave without pay. The Veteran stated that although he was still employed, he was unable to perform his duties, unable to maintain work attendance, and unable to earn his salary, and he was therefore forced to leave his employment due to his psychiatric symptoms. Further, the Veteran stated that an additional employment offer was withdrawn due to the severity of his psychiatric symptoms. Lastly, the Veteran stated that prior to a suicide attempt and psychiatric hospitalization in August 2019 he tried to keep the severity of his psychiatric symptoms bottled up, including constant suicidal ideation, as he did not want to concern his wife or endanger his employment. On September 12, 2019, the Veteran underwent an in-person VA examination with claims file review regarding his psychiatric disability. The examiner noted that the Veteran attempted suicide approximately four weeks prior and was subsequently hospitalized. The examiner also noted that the Veteran has not been able to return to work or school due to an increase in suicidal ideation and that the Veteran is afraid of being hospitalized again as he is the sole provider for his wife and three children. The examiner diagnosed unspecified bipolar and related disorder. The examiner determined that the Veteran’s psychiatric symptoms include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgement; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances suicidal ideation; spatial disorientation; persistent danger of hurting self or others; neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner noted that the Veteran was out of leave for his employment and feared that a financial crisis is imminent. The examiner noted that the Veteran was messily dressed and made poor eye contact. The examiner noted that the Veteran was experiencing a maximum level of stress; that he could express himself logically when relaxed but that many times his conversation was hard to follow; and that he was only minimally able to problem solve. The examiner determined that the Veteran’s level of impairment is total social and occupational impairment. Subsequently, in a September 2019 rating decision, the Veteran was assigned a total disability rating effective September 12, 2019, the date of the VA examination demonstrating the severity of his psychiatric symptoms. Next, regarding the severity of the Veteran’s psychiatric symptoms demonstrated in VA treatment records. On August 30, 2017, the VA treatment records indicate that the Veteran was hospitalized following a routine care appointment due to acute psychiatric symptoms, including suicidal ideation and self-mutilating behavior. The Veteran was hospitalized for stabilization of mood, safety, and aftercare planning. The records indicate that he was discharged on September 5, 2017 with an aftercare plan for continued psychiatric treatment. Subsequently, the Veteran’s VA treatment records indicate continued treatment for psychiatric symptoms, including suicidal ideation, anxiety, depression, irritability, sleep impairment, and anger management. The August 2019 VA treatment records document that the Veteran was hospitalized following a violent altercation with his wife and a suicide attempt. Additionally, the August 2019 VA treatment records document that the Veteran had been planning and researching suicide for many months, even prior to the August 2017 psychiatric hospitalization. The records indicate that he was discharged on August 30, 2019 with an aftercare plan for continued psychiatric treatment. The records to the present document continued treatment for psychiatric symptoms. The Board finds that the probative evidence of record demonstrates that a total disability rating is warranted for the period prior to September 12, 2019. Initially, the Board notes that under 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating will be one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Thus, as the present claim was filed on September 24, 2018, the earliest date that an increased rating may be granted is one year prior, and the evidence of record demonstrates that the Veteran’s level of impairment was total social and occupational impairment during this period. First, the credible testimony provided by the Veteran during the December 2020 hearing before the Board demonstrates that his symptoms, including constant suicidal ideation, started to worsen approximately around the time of his August 2017 psychiatric hospitalization. The Veteran stated that he attempted to bottle up and suppress these symptoms as he did not want to concern his wife or endanger his employment. The Veteran further stated that his work performance and attendance had deteriorated so badly that he was no longer able to earn his salary. Second, the September 2019 VA examiner indicated that the Veteran’s symptoms had already begun to worsen prior to the date of the examination and determined that the Veteran suffered from numerous psychiatric symptoms causing total social and occupational impairment. Lastly, the Veteran’s VA treatment records indicate that prior to the August 2017 psychiatric hospitalization, the Veteran suffered from constant suicidal ideation as he had been planning and researching suicide for many months. Further, following the August 2017 psychiatric hospitalization, the continued VA psychiatric care indicates treatment for severe anxiety, depression, suicidal ideation, irritability, anger management, and sleep impairment until the Veteran was again hospitalized for acute psychiatric symptoms following a violent altercation and suicide attempt in August 2019. Therefore, the Board finds due to the severity, frequency, and duration of the Veteran's psychiatric symptoms, most notably that he is a persistent danger of hurting himself or others, that the Veteran’s psychiatric symptoms are consistent with the 100 percent rating criteria for the period prior to September 12, 2019. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a total disability rating for unspecified bipolar and related disorder, for the period prior to September 12, 2019, are met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) 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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Gout The Board has reviewed the evidence of record and finds that service connection is warranted for gout. First, the Veteran provided credible testimony at the hearing before the Board in December 2020 regarding his claim of service connection for gout. The Veteran stated that his symptoms related to gout first began during service and continue to the present. Specifically, the Veteran stated that on a holiday weekend shortly before separation from service he began to experience severe foot pain. The Veteran stated that he initially thought he stepped wrong and called a fellow servicemember to his home to help him get around and care for his child. Lastly, the Veteran stated that he has since experienced episodes of the same foot pain approximately every six months and that shortly after separation from service his foot pain was diagnosed as gout. Next, the Veteran’s service treatment records (STRs) exhibit evidence of gout related symptoms. Specifically, the July 2012 STRs indicate that the Veteran complained of left foot pain that had been present for 5 days. The records indicate no findings of trauma, swelling, or deformity and that the left foot x-rays were unremarkable. The remaining available STRs do not show evidence of gout related symptoms or a diagnosis of gout. Further, the Veteran’s VA treatment records indicate a diagnosis of gout following an emergency room visit in January 2014. The Veteran reported that he previously had three suspected gout attacks, which lasted three to five days. A diagnosis of gout was confirmed with a finding of elevated uric acid. The VA treatment records to the present continue to demonstrate treatment for gout with prescribed medication managed by his private physician. Additionally, in December 2020 the Veteran submitted a statement from his private physician regarding gout. The private physician stated that the Veteran is currently diagnosed as having gout, which is treated with prescribed medication. Further, the physician stated that the Veteran has a history of continuing symptoms related to gout and that during service in July 2012 the Veteran experienced left foot pain that was mostly likely an undiagnosed gout attack. The physician opined that is more likely than not that the Veteran’s gout was incurred during service and continues to the present. Lastly, the Veteran’s private treatment records submitted in September 2018 also demonstrate continuing treatment for gout. The Board finds that the probative evidence of record establishes a finding of service connection. First, during the December 2020 hearing before the Board, the Veteran provided credible testimony indicating that his gout related symptoms first began during service and continue to the present. Second, the Veteran’s STRs corroborate the Veteran’s hearing testimony that he first began to experience gout related symptoms of foot pain shortly before separation from service as his July 2012 STRs demonstrate complaints of foot pain lasting for five days with unremarkable x-ray findings. Third, the Veteran’s VA treatment records also support the Veteran’s assertion regarding continuing symptoms of gout as less than two years following separation from service he was diagnosed as having gout with a history of three prior gout attacks. Lastly, the statement from the Veteran’s private physician establishes a nexus relationship between the Veteran’s in-service symptoms of foot pain and his continuing symptoms of foot pain resulting in his present diagnosis of gout. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing service connection for gout have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. Sleep Apnea The Board has reviewed the evidence of record and finds that service connection is warranted for sleep apnea. First, the Veteran provided credible testimony at the hearing before the Board in December 2020 regarding his claim of service connection for sleep apnea. The Veteran stated that during service he suffered from daytime fatigue and would fall asleep if he sat anywhere for too long. He stated that his fellow soldiers made fun of the way he snored and said his snoring sounded like the sound of a generator. Further, the Veteran stated that he spoke to his chaplain about his problems and was encouraged to undergo sleep apnea testing. The Veteran stated that during service he sought treatment for his suspected sleep apnea and requested testing but that his complaints were attributed to allergies. The Veteran stated that eventually the symptoms worsened significantly, he sought treatment with his private physician in 2018, and he was diagnosed as having sleep apnea. Next, the Veteran’s STRs exhibit evidence of sleep apnea related symptoms. The Veteran’s STRs, including in April 2009 and June 2010, indicate routine complaints of seasonal allergies for which oral medication and nasal spray was prescribed; however, the June 2012 STRs also indicate complaints of worsened symptoms related to allergies as well as breathing problems, insomnia, and drowsiness. The Veteran requested a sleep study to assess possible sleep apnea. The records indicate that a sleep study was recommended but was not performed prior to the Veteran's separation from service. Further, regarding the Veteran’s medical treatment records. The VA treatment records indicate that in March 2014 he complained of insomnia and breathing problems and requested a sleep study to assess whether he had sleep apnea. The August 2018 private treatment indicate that the Veteran was finally provided with a sleep study, was diagnosed as having sleep apnea, and was prescribed PAP therapy. The February 2019 VA treatment records indicate that the Veteran was provided a second sleep study for continued PAP therapy recommendations, and that the Veteran complained of insomnia, daytime fatigue, and awakenings due to snoring and choking. The VA treatment records to the present indicate continuing treatment for sleep apnea with prescribed PAP therapy. In September 2018, the Veteran submitted a letter from a fellow servicemember regarding his sleep apnea. The servicemember stated that she was stationed with the Veteran for two years and that during service they frequently attended training and exercises together, which were often overnight or several days in duration. The servicemember stated that the Veteran would snore no matter his sleeping position, had trouble sleeping, complained of daytime fatigue, and looked visibly exhausted. The Board finds that the probative evidence of record supports a finding of service connection for sleep apnea. First, during the December 2020 hearing before the Board, the Veteran provided credible testimony indicating that his sleep apnea related symptoms first began during service and continue to the present. Second, the Veteran’s STRs corroborate the Veteran’s credible hearing testimony that he first began to experience sleep apnea related symptoms during service as his June 2012 STRs demonstrate complaints of worsened symptoms related to allergies as well as breathing problems, insomnia, and drowsiness. Moreover, the STRs indicate that based on the Veteran's complaints he was recommended to undergo a sleep study to assess whether he had sleep apnea, which was not performed. Third, the letter from the Veteran’s fellow servicemember also corroborates the Veteran’s credible hearing testimony regarding the onset of sleep apnea symptoms during service as she stated that the Veteran had trouble sleeping, snored no matter his sleeping position, complained of daytime fatigue, and was visibly exhausted. Lastly, the Veteran’s medical treatment records also support the Veteran’s assertion regarding continuing symptoms of sleep apnea as the March 2014 VA treatment records document that he again complained of insomnia and breathing problems and requested to be tested for sleep apnea. When the Veteran was finally provided with a sleep study, after two unfilled requests, he was ultimately diagnosed as having sleep apnea by his private physician in August 2018. Thus, the Board finds that the probative evidence of record supports the conclusion that a finding of service connection has been established by demonstrating that the Veteran’s symptoms related to his present diagnosis of sleep apnea first started during service and continue to the present. (Continued on next page) Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing service connection for sleep apnea have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.