Citation Nr: 21023460 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-20 773 DATE: April 20, 2021 ORDER An effective date earlier than May 19, 2014 for the award of service connection for a major depressive disorder is denied. New and material evidence having been received, the claim for service connection for obstructive sleep apnea is reopened. An initial rating greater than 70 percent for the service-connected major depressive disorder is denied. REMANDED Service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. VA received the Veteran’s original claim for service connection for a major depressive disorder on May 19, 2014. 2. An August 2014 rating decision granted service connection for a major depressive disorder effective May 19, 2014 and denied service connection for obstructive sleep apnea. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. 3. The evidence received since the August 2014 denial relates to an unestablished fact necessary to substantiate the claim for service connection for obstructive sleep apnea and raises a reasonable possibility of substantiating the claim. 4. The severity, frequency, and duration of the Veteran’s service-connected major depressive disorder symptoms do not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The August 2014 rating decision that granted service connection for major depressive disorder effective May 19, 2014 and denied service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria for an effective date earlier than May 19, 2014 for the award of service connection for a major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 3. New and material evidence has been received to reopen the claim for service connection for obstructive sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for an initial rating greater than 70 percent for the service-connected major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2018, the Board remanded the issues on appeal for the issuance of a statement of the case. In July 2020, the Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case. In August 2020, the Veteran, through his representative, filed a substantive appeal in which he limited the appeal to the issues of service connection for obstructive sleep apnea and an effective date earlier than May 19, 2014 for the grant of service connection for major depressive disorder. However, in September 2020, the Veteran added the issue of an initial rating greater than 70 percent for major depressive disorder. In a July 2020 rating decision, the AOJ granted a total disability rating based on individual unemployability (TDIU) effective May 19, 2014. Thus, that issue is no longer before the Board. Effective Date—Major Depressive Disorder Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. VA received the Veteran’s original claim for service connection for a psychiatric disorder on May 19, 2014. In an August 2014 rating decision, the AOJ granted service connection for major depressive disorder and assigned an effective date of May 19, 2014, based on the date of receipt of the claim. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue. 38 C.F.R. § 3.156(b). Thus, the decision became final. Given the above, the Veteran is seeking an earlier effective date stemming from a final rating decision, the August 2014 decision that granted service connection for major depressive disorder and assigned an effective date of May 19, 2014. As the record stands, the Veteran did not initiate an appeal of that rating decision, and thus that decision became final as to that issue. Only a request for revision based on clear and unmistakable error (CUE) can result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran has not asserted CUE in this case. However, notice of the August 2014 rating decision was returned later that month by the United States Postal Service with a notation that forward time had expired. The Veteran, however, had actual knowledge of the rating decision, which not only granted service connection for major depressive disorder but also denied service connection for obstructive sleep apnea. This is indicated by the Veteran’s listing of major depressive disorder as a service-connected disability on his November 2016 claim for a TDIU and his characterization of the obstructive sleep apnea claim as a claim to reopen a previously denied claim on his November 2016 supplemental claim for compensation. However, the record is unclear as to when he received notice of the decision, and, in the December 2018 remand, the Board phrased the issue as entitlement to an effective date earlier than May 19, 2014, for the grant of service connection for major depressive disorder. Thus, to avoid an prejudice to the Veteran, the Board will also consider the merits of the claim. As noted above, VA received the Veteran’s claim for service connection for major depressive disorder on May 19, 2014, which was received more than one year after his separation from service. There is no earlier correspondence from the Veteran or his representative indicating an intent to file a claim for the disorder. While the Board is sympathetic to the Veteran’s situation, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. He has been assigned an effective date based on of the date of receipt of his claim for service connection. The record does not show, and he does not assert, that he filed an earlier claim for the disability. Thus, the date of May 19, 2014 is the proper effective date for the award of service connection for a major depressive disorder. Accordingly, the Board concludes that an effective date earlier than May 19, 2014 for the award of service connection for major depressive disorder is not warranted. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Application to Reopen—Obstructive Sleep Apnea Generally, a final decision issued by the AOJ may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is existing evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). As indicated above, the claim for service connection for obstructive sleep apnea was originally denied in the August 2014 rating decision. The claim was denied as there was no evidence of the disability in service or of a link between the disability and service. The Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. There is no indication that new and material evidence pertinent to the issue was received within one year following the decision. Thus, the decision became final as to this issue. Pertinent evidence received since the August 2014 denial includes March 2017 and August 2020 statements in which the Veteran asserted that his obstructive sleep apnea is secondary to his major depressive disorder, to include as due to obesity as an intermediate step, and a medical treatise indicating a link between depression and obesity. Presuming the credibility of the evidence, the record now indicates that his obstructive sleep apnea may be related to his service-connected major depressive disorder. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for obstructive sleep apnea is reopened. Increased Rating—Major Depressive Disorder Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Effective May 19, 2014, the Veteran’s major depressive disorder has been rated at 70 percent under Diagnostic Code 9434. 38 C.F.R. § 4.130. The psychiatric symptoms listed in this rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the criteria of Diagnostic Code 9434 provide for a 70 percent rating where the evidence shows 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. The criteria also provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. At a July 2014 VA examination, the Veteran reported that he lives alone, has a number of friends, and is mostly content with his social support system, but has been reclusive the last couple of years due to his mood. He reported obtaining his last full-time job in 2007 but being fired in July 2013 and working part-time since then (four hours per week). He described a depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, feelings of hopelessness, and appetite disturbance. Examination revealed that he was alert and oriented and interacted in a logical, coherent, and cooperative fashion. Affect was reduced in range, and he was a bit anxious. Speech was normal. He noted his typical mood as depressed which he rated as 2 or 3 with 1 being severe. He also noted generalized anxiety especially during late afternoon and evening hours. There were no signs of thought disorder, hallucinations, or delusions. He was casually dressed with average grooming. Insight was average. Concentration was fair. The examiner assigned a Global Assessment of Functioning (GAF) score of 60 and indicated that the Veteran’s psychiatric disability results in 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. The examiner concluded that the Veteran had mild to moderate major depressive disorder with anxious features. At a January 2017 VA examination, the Veteran reported that he lives alone, has some contact with his sister and cousin once a month, has a couple of friends that come over, has a friend who comes over to watch football, and goes to movies with neighbors once every three or four months. He reported that he has not worked since the last examination. He reported symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Examination revealed that the Veteran was oriented and neatly groomed and that his attention and concentration were intact. He described his mood as numb and not very good, finding himself feeling depressed and at times anxious. Insight and judgment were normal. He was able to interpret a proverb, indicating normal abstract reasoning. Memory for remote, recent, and immediate memory were intact. The examiner indicated that the Veteran’s psychiatric disability results in occupational and social impairment with reduced reliability and productivity. Given the above, even if the Board were to find that the Veteran’s major depressive disorder results in total occupational impairment, his major depressive disorder does not result in total social impairment, which is also required for a 100 percent rating. The record shows that he maintains contact with family and socializes with a few friends and neighbors. Examinations fail to show that he has symptoms of a severity or frequency to support a 100 percent rating. In fact, he did not report any symptoms of a 100 percent rating. Moreover, the examiners’ assessments of the severity of the Veteran’s disability do not even support the currently assigned 70 percent rating. In reaching this conclusion, the Board notes the Veteran’s GAF score of 60 at the July 2014 examination. GAF scores from 51 to 60 indicate moderate symptoms or moderate difficulty in social or occupational functioning, and GAF scores from 61 to 70 indicate mild symptoms or some difficulty in social or occupational functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Thus, the Veteran’s GAF score of 60 is just above mild symptoms and on the low end of moderate symptoms. VA medical records do not show a higher level of impairment due to the major depressive disorder or symptoms of a severity or frequency to support a 100 percent rating. While the Board acknowledges that the Veteran’s major depressive disorder has resulted in significant occupational and social impairment, the Board finds that his major depressive disorder has not resulted in total occupational and social impairment. Thus, a rating greater than 70 percent is not warranted. Thus, the Board concludes that an initial rating greater than 70 percent for the service-connected major depressive disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection – Obstructive sleep apnea The Veteran asserts that his obstructive sleep apnea began in service or is secondary to his service-connected major depressive disorder, to include as due to obesity as an intermediate step. In support of his assertion, he has submitted a medical treatise indicating a link between depression and obesity. Also, a January 2017 VA examiner opined that the Veteran’s obstructive sleep apnea was not caused or aggravated by his major depressive disorder. However, the examiner did not provide an opinion on whether the obstructive sleep apnea began in service or address obesity as an intermediate step. A precedential opinion of VA’s General Counsel, VAOPGCPREC 1-2017, explains that obesity may not be service-connected in and of itself but may be an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In such cases, the question is whether the service-connected disability(ies) or claimed service-connected disability(ies) cause a veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability(ies) or claimed service-connected disability(ies). Here, there is no opinion that addresses whether the Veteran’s weight gain (or obesity) could serve as an intermediate step between his major depressive disorder and the development or aggravation of his obstructive sleep apnea. Accordingly, this matter is REMANDED for the following action: Refer the Veteran’s entire claims file to a clinician of appropriate medical expertise to provide an addendum opinion (or, if the clinician determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran’s obstructive sleep apnea. The claims file and a copy of this REMAND should be made available to the clinician for review. After record review (and examination if deemed necessary), the examiner should offer an opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: (1.) With regard to direct service connection: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea had its onset in, or is otherwise related to, his active duty? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected major depressive disorder caused his obstructive sleep apnea? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected major depressive disorder aggravated (i.e., worsened beyond the natural progress) his obstructive sleep apnea? If the examiner determines that the Veteran’s obstructive sleep apnea is aggravated by his major depressive disorder, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of obstructive sleep apnea is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [The Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] (2.) With regard to secondary service connection (with obesity as a intermediate factor)—did the Veteran’s service-connected major depressive disorder cause him to become obese? If so, the examiner should opine as to whether: (a.) the Veteran’s obesity was a substantial factor in causing or aggravating his obstructive sleep apnea. (b.) the Veteran’s obstructive sleep apnea would not have occurred but for the obesity caused by his service-connected major depressive disorder. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.