Citation Nr: 21041162 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-21 958 DATE: July 8, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. An initial rating of 70 percent, but no higher, for persistent depressive disorder with post-traumatic stress disorder (PTSD) prior to August 1, 2019 is granted. A rating in excess of 70 percent for persistent depressive disorder with PTSD beginning August 1, 2019 is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's OSA was incurred in or related to service. 2. Prior to August 1, 2019, the Veterans persistent depressive disorder with PTSD was manifested by occupational and social impairment with deficiencies in most areas. 3. From August 1, 2019, the Veteran's persistent depressive disorder with PTSD did not manifest by total occupational impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to an initial rating of 70 percent, but no higher, for persistent depressive disorder with PTSD prior to August 1, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, DC 9433 3. The criteria for entitlement to an initial rating in excess of 70 percent for persistent depressive disorder with PTSD from August 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, DC 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to September 1987, with subsequent periods of service in the Navy Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board but were remanded in a March 2021 decision in pursuit of additional records and a new VA examination. Additional relevant evidence has been added to the record and this evidence has not been considered by the agency of original jurisdiction (AOJ) in conjunction with the matters on appeal. However, the Veteran's substantive appeal was received after February 2, 2013; as such, no waiver of initial AOJ consideration of the evidence is required. See 38 C.F.R. § 20.1304 (2016) and § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310 (b). To prevail on a claim for secondary service connection, the record must show (1) current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998) The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. OSA The Veteran contends that his OSA was related to service, including as secondary to the Veteran's service-connected persistent depressive disorder with PTSD. As to direct service connection, the record indicates that the Veteran has been diagnosed with OSA. See November 2016 Sleep Apnea Analysis, March 2018 Sleep Apnea Disability Benefits Questionnaire, and March 2021 VA examination. Additionally, a May 2018 lay statement stated that the Veteran's brother heard the Veteran snoring loudly and his breathing stop in September 1987. Thus, the question of direct service connection is whether there is medical evidence establishing a link between the current disability and the Veteran's service. The Veteran underwent a VA examination of his OSA in March 2021. The medical professional reviewed the claims file and examined the Veteran and provided a positive opinion linking the Veteran's OSA to his active service. The Veteran was afforded an additional VA opinion in April 2021. The opinion found it less likely than not that the Veteran's sleep apnea was related to his active service. In support of this opinion, the clinician cited the absence of complaints of OSA during service. The opinion fails to address the March 2018 lay statements identified in the Board's March 2021 remand directives where it was asserted that the Veteran's brother heard the Veteran snoring loudly and his breath stopping in September 1987. As such, the Board finds the opinion inadequate as it did not adequately address the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the Veteran also submitted a private medical opinion from Dr. Shoag that provided a positive opinion relating the Veteran's OSA to his service-connected PTSD disability. As the Board is granting service connection for OSA on a direct basis, secondary service connection need not be addressed. In consideration of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's OSA first manifested in service and was incurred in service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for OSA is warranted. Increased Ratings Disability ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2018). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. Persistent depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9433. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is assigned for persistent depressive disorder manifested by 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-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, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. A 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. PTSD and Depressive Disorder The Veteran contends he is entitled to a rating in excess of 30 percent for his persistent depressive disorder with PTSD prior to August 1, 2019, and in excess of 70 percent thereafter. In an August 1, 2019 VA examination, the Veteran's symptoms were listed as persistently depressed, irritable mood, impaired sleep, fatigue, low energy, low motivation, low self-esteem, easily upset and annoyed, recurrent, involuntary, and intrusive distressing memories, recurrent distressing dreams, intense or prolonged psychological distress, avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, mild memory loss, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, obsessional rituals, and impaired impulse control. The Veteran reported his relationship with his wife as strained by his disability for the past few years. He would snap and be verbally aggressive towards her. He reported having a good but minimal relationship with his daughter, speaking only by text every two weeks. The Veteran stated that he was estranged from his family, feeling suspicious when his siblings spoke to one another, thinking their conversation was about him. The Veteran reported work issues stemming from his disability. He stated he would get irritable at work and be angry with co-workers as well as be anxious. Prior to the Veteran's August 2019 examination, the Veteran exhibited similar symptoms. In a January 2018 VA examination, the Veteran again reported sleep disturbances, anxiety, suspiciousness, memory loss, and disturbances of motivation and mood. A December 2017 VA medical record noted the Veteran's symptoms as including depressed mood, intrusive thoughts, hyperarousal, and sleep disturbances. Similar symptoms were reported in an October 2017 VA medical record. A July 2017 VA medical record documented the Veteran as often feeling "quiet," irritable and reactive, as well as anxious. A June 2017 VA medical record showed the Veteran feeling that his disability is interfering with his relationship with his wife and interfering with his performance at work. An April 2014 VA medical record listed the Veteran's symptoms as anger, irritability, recurrent thoughts and dreams, and hyperarousal. The Veteran noted he often would get angry and irritable with his wife, affecting their relationship. His anger would impact his work as well. His outbursts with family and coworkers strained his interpersonal engagement in both social and familial domains. Considering the evidence, the Board concludes the Veteran's August 2019 symptoms did not begin the day of his examination but were present prior to the examination. In an opinion by a private physician provided in May 2021, the Veteran reports almost being fired from his position in 2019 but was not, and no additional information on that incident is in the record. The Veteran states he is offered accommodations at his work, but it is not clear what the accommodations are. As a result of his anger due to his disability, the Veteran states he is no longer allowed to attend meetings in the workplace, and is instead given updates by his supervisor after the meeting has ended. The Veteran's position at the insurance company continued during the pandemic with the Veteran working from home. He reports that he still is argumentative in emails and phone conversations and thinks he will likely get fired because of his behavior. The Veteran also asserts he struggles to complete assignments and learn new information and processes. The private physician opined that the Veteran's connection to employment was tenuous at best, citing the Veteran's assertion that he remained employed only because of the pandemic, which allowed him to stay home and not be as argumentative and disruptive. The physician stated the Veteran still suffered from anger, impulsivity, and irritability issues despite working from home. The physician concluded his opinion by saying the Veteran has been unemployable since approximately May 2020. As mentioned above, the criteria for a 70 percent rating for persistent depressive disorder 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 worklike setting); inability to establish and maintain effective relationships. As to occupational and social impairment prior to August 1, 2019, the Veteran's disability caused severe deficiencies. The Veteran's relationship with his wife was strained, reaching the point where they rarely spend time with one another and were not very connected. The Veteran spoke infrequently with his daughter or other family members. He had no friends outside of his family. At work, the Veteran reported angry interactions, special accommodations meant to limit his interactions with others, and limitation of responsibilities due to his disability. As to symptoms, the Veteran reported bouts of unprovoked anger with violence towards objects, both in his personal and professional environments. He showed a continuous inability to establish and maintain effective relationships with family, friends, and coworkers. In consideration of the above, the Board finds that a rating of 70 percent for the Veteran's persistent depressive disorder with PTSD prior to August 1, 2019 is warranted. The Veteran is now in receipt of a 70 percent rating throughout the entire rating period on appeal. The Board next finds that a rating in excess of 70 percent is not warranted for the entire rating period on appeal. A 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. The evidence shows the Veteran has been employed since 2006 as a reporting analyst for an insurance company. The Board recognizes the Veteran's disability as impacting his work, as shown in the previous analysis, but his continuous employment demonstrated the Veteran's disability does not cause total occupational and social impairment. The requirements for a 100 percent rating are total occupational and social impairment. The Veteran's continued employment demonstrates the Veteran's disability does not cause total occupational impairment. As such, the Board finds that a rating in excess of 70 percent for persistent depressive disorder with PTSD is not warranted for the entire rating period on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.