Citation Nr: 21042524 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-42 527 DATE: July 13, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) and bipolar disorder, prior to August 8, 2016, is denied. Entitlement to a rating in excess of 70 percent for service-connected PTSD and bipolar disorder with obsessive-compulsive disorder (OCD), from August 8, 2016, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. FINDINGS OF FACT 1. From May 7, 2014 to August 8, 2016, the severity, frequency, and duration of the Veteran's PTSD and bipolar disorder symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From August 8, 2016, the severity, frequency, and duration of the Veteran's PTSD and bipolar disorder with OCD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for service-connected PTSD and bipolar disorder, prior to August 8, 2016, 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 (DC) 9411. 3. The criteria for a rating in excess of 70 percent for service-connected PTSD and bipolar disorder with OCD, from August 8, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to December 1994, March to September 2002, July to November 2003, May 2006 to October 2006, and from January to June 2008. 1. Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD) and bipolar disorder with obsessive-compulsive disorder (OCD) In the April 2015 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and bipolar disorder and assigned an initial 50 percent rating, effective May 7, 2014. The Veteran disagreed with the initial rating assigned, after which the RO awarded an increased 70 percent rating, effective August 8, 2016. See August 2016 rating decision. The Veteran continued to disagree with the ratings assigned to his service-connected disability and perfected an appeal as this issue. During the pendency of the appeal, the Veteran's disability was re-characterized as PTSD and bipolar disorder with obsessive-compulsive disorder (OCD). See June 2019 VA examination; July 2019 rating decision. This appeal is now before the Board for consideration. Accordingly, the Board will consider whether a rating in excess of 50 percent is warranted from May 7, 2014 (the effective date of service connection) and whether a rating in excess of 70 percent is warranted from August 8, 2016. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; 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. With respect to the initial rating assigned prior to August 8, 2016, the relevant evidence includes a May 2014 VA examination report and VA treatment records dated in 2015. Parenthetically, the Board notes that the Veteran also submitted private treatment records that document treatment for his psychiatric condition in 2012 and 2013 but, because this evidence is dated prior to the date of receipt of his claim and the effective date of service connection, this evidence is not relevant to the increased rating claim on appeal and will not be discussed in this decision. During the May 2014 VA examination, the Veteran was diagnosed with bipolar disorder, PTSD, and generalized anxiety disorder (GAD). The examiner noted that it was not possible to differentiate the symptoms or level of occupational and social impairment attributable to each diagnosis because the symptoms are interconnected and exacerbate each other. Therefore, all symptoms noted will be attributed to the Veteran's service-connected psychiatric disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The May 2014 VA examiner noted that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances in motivation and mood, difficulty establishing and maintaining relationships, and suicidal ideation. With respect to his mood, the examiner noted the Veteran became more emotionally dysregulated, anxious, and hypervigilant as a result of his in-service stressors and that he also experienced emotional lability or mood swings. For example, the Veteran reported that he felt down for most of the month prior to the examination and also endorsed feelings of hopelessness, anhedonia, and crying spells. He also reported experiencing self-criticism and mistrust of others and, in this regard, the examiner noted that the Veteran's negative beliefs about himself and others increased his anxiety. The Veteran stated that he preferred to reduce his anxiety by avoiding triggering situations, which resulted in greater social withdrawal and seclusion such that he avoided crowded places and was more guarded. He also reported that his avoidance of triggering situations made it difficult to communicate with co-workers and establish new relationships. Nevertheless, the Veteran reported having a supportive relationship with his wife and spending a majority of his time with family or working. As for work, the Veteran reported having overall good performance at work, although he noted difficulty interacting with co-workers and often needing to call his family for reassurance, which reduced his productivity. In this regard, the Veteran reported reaching out to his wife and other family members during the day when he had anxious or paranoid thoughts. He also endorsed having intrusive thoughts of his in-service stressors and stated that he startled awake at night with panic and anxiety, after which he had to talk about his worries before resting again. The Veteran also reported that, when he starts to feel anxious or panicky, he gets angry although he denied any physical violence toward others. He also reported having suicidal ideations in the past, in addition to difficulty focusing and concentrating, low energy, and poor sleep. In May and August 2015, the Veteran denied having any suicidal or homicidal ideations, audio or visual hallucinations, or paranoia. Indeed, his thought content was normal, and his thought process was linear, coherent, logical, and goal-directed. However, he continued to endorse experiencing depression, anxiety, sleep disturbance with vivid memories, rare flashbacks, and social withdrawal. In August 2015, he stated that he was doing well but with high anxiety and ruminating thoughts at times. He also reported having decreased memory, and the examiner noted that his judgment and insight were fair. See VA treatment records dated May and August 2015. Based on the foregoing, the Board concludes that, from May 7, 2014 to August 8, 2016, the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. Instead, the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. As shown above, many of the Veteran's symptoms are associated with a 30 percent rating, including depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The evidence also shows that, despite his symptoms, the Veteran generally functioned satisfactorily at work and at home with routine behavior, self-care, and normal conversation. However, the Veteran also endorsed having more moderately severe symptoms, such as panic attacks more than once a week, disturbances in motivation and mood, difficulty establishing and maintaining relationships, and the relevant evidence shows that the Veteran's insight and judgement were impaired, all of which are associated with the 50 percent rating. The evidence also reflects that the Veteran has endorsed having additional symptoms that are not listed with a specific rating, such as hypervigilance, intrusive thoughts, and difficulty focusing and concentrating. However, the Board finds that the Veteran's reported hypervigilance appears to be an additional manifestation of his anxiety, which is contemplated by the 30 percent rating, whereas his intrusive thoughts and concentration difficulties are similar to the severity, frequency, and duration of impaired abstract thinking and disturbances in motivation and mood listed under the 50 percent rating. The Board acknowledges the Veteran's hypervigilance is similar to obsessional rituals which is contemplated in the 70 percent criteria; however, the evidence dated prior to August 2016 does not reflect that the Veteran's hypervigilance interfered with his ability to perform routine activities. In this regard, the Board notes that, while the evidence dated prior to August 2016 shows the Veteran expressed the need to call his wife and other family members during the day when he had anxious or paranoid thoughts, the VA examiner did not describe this behavior as an obsessive behavior but, instead, noted that this behavior reduced the Veteran's productivity, which is consistent with the level of impairment noted for the 50 percent rating. In this context, the Board further notes that, while the Veteran reported feeling angry and experiencing social withdrawal because of his anxiety and panic attacks, the evidence does not reflect that the Veteran's anger was of the severity, frequency, or duration to rise to the level of impaired impulse control with periods of violence as contemplated by the 70 percent rating. In addition, the evidence does not reflect that the Veteran's social withdrawal, suspiciousness, or other symptoms resulted in a severe impairment in social and occupational functioning. Instead, the Veteran's symptoms resulted in difficulty establishing and maintaining effective interpersonal relationships, as opposed to an inability to do so, as he maintained good relationships with his family and reported overall good performance at work despite difficulty interacting with co-workers. The Board acknowledges that the March 2015 VA examiner noted the Veteran's symptoms included suicidal ideation, which is listed under the 70 percent rating; however, the preponderance of the evidence, including the Veteran's specific report at that time, shows that he had a history of suicidal thoughts prior to the date from which service connection is established. Indeed, the evidence shows he expereinced suicidal thoughts when he was hospitalized in 2012 and 2013 but there is no lay or medical evidence documenting continued or current suicidal thoughts thereafter, including after May 2014. See e.g., April 2015 VA examination; VA treatment records dated May and August 2015. Therefore, the Board finds the Veteran's history of suicidal thoughts are not of the frequency or duration to support the award of a 70 percent rating prior to August 2016. Indeed, while the relevant evidence clearly shows the Veteran's demonstrated myriad symptoms that impaired his mood, motivation, and interpersonal functioning prior to August 2016, the preponderance of the evidence reflects that he generally functioned satisfactorily with symptoms either contemplated by or more consistent with a 50 percent rating and that resulted in an overall functional impairment with no more than reduced reliability and productivity. Therefore, the Board finds that, from May 7, 2014 to August 8, 2016, the criteria for a 70 percent or higher rating are not met and, thus, a rating in excess of 50 percent is not warranted. With respect to the rating assignable from August 8, 2016, the relevant evidence includes VA examinations conducted in August 2016 and June 2019. During both examinations, the Veteran's diagnoses were changed to bipolar disorder with severe anxious distress, PTSD with panic attacks, and other obsessive-compulsive disorder (OCD) with focused repetitive behavior. The August 2016 VA examiner explained that the inclusion of "severe anxious distress" to the diagnosis of bipolar disorder captured the symptoms previously used for the GAD diagnosis and overlapped the OCD diagnosis, which was assigned to capture the Veteran's compulsive checking behaviors. Nevertheless, the August 2016 VA examiner stated that it was not possible to differentiate the symptoms or occupational and social impairment attributable to each diagnosis. The June 2019 VA examiner indicated that it is possible to differentiate the symptoms for each diagnosis, but he also noted that there is significant overlap between the symptoms and that one disorder can exacerbate the other. Therefore, after resolving any doubt in favor of the Veteran, the Board concludes that all of the Veteran's symptoms are attributable to his service-connected psychiatric disability. During the August 2016 examination, the examiner noted that the Veteran's symptoms included anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic and depression affecting ability to function independently, appropriately, or effectively, chronic sleep impairment, flattened affect, circumstantial, circulatory, or stereotyped speech, disturbances in motivation and mood, difficulty adapting to stressful circumstances, inability to establish or maintain effective work and social relationships, obsessional rituals, impaired impulse control, and intermittent inability to perform activities of daily activities. The August 2016 VA examiner noted the Veteran's recurrent and severe panic attacks frequently disrupted his concentration and ability to maintain pace, as well as reinforced his avoidant and isolative coping styles. In this regard, he noted the Veteran continued to avoid others due to paranoia and negative appraisal of others' intentions, as well as his decreased tolerance for engaging in routine social interactions. He also noted the Veteran had marked impairment in his ability to initiate and maintain effective relationships with increased dependency on his wife for emotional stability, sense of safety, and basic decision making. In this regard, the examiner noted the Veteran called or texted his wife excessively during the work day, which consumed more than half of his time at work, and also noted the Veteran's need for perfectionism, intolerance of uncertainty, inflated sense of responsibility, overestimating threats, and need to control his environment and surroundings. The examiner noted that, since the previous examination, the Veteran changed positions and employers two times due to his decreased ability to maintain appropriate interactions with others and manage or effectively adapt to increased stressors while maintaining pace, productivity, and efficiency. The examiner also noted the Veteran's concentration was impaired due to ruminative thinking and anxious distress. He also noted the Veteran's impaired impulse control was manifested by frequent outbursts of verbal aggression or rage with a remote history of physical destruction of property and out of control behaviors. The Veteran continued to experience periods of mood destabilization, although he continued to endorse a ruminative thinking style with uncontrolled worry and fear that something awful would happen or that he would lose control of himself. During mental status examination, the examiner noted there was evidence of marked startle response and hypervigilance, as well as tangential thought process and circumstantial speech. There was no evidence of overt psychotic symptoms or reported suicidal or homicidal ideation, but there was paranoia in general with an ability to reality test to a point. During the June 2019 VA examination, the Veteran continued to endorse paranoid thinking, obsessive thinking, compulsive behaviors, and anxious distress. The Veteran's symptoms also included depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, flattened affect, circumstantial, circumlocutory, or stereotyped speech, impaired judgement, disturbances in motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and obsessional rituals that interfere with routine activities. The Veteran reported that he remained close with his extended family but continued to be socially avoidant and isolated, as he was highly uncomfortable with others outside of his home. He also continued employment as an IT Support Specialist, although he reported experiencing a lot of paranoia, panic attacks, and anxiety on the job, which affects his efficiency. He also reported spending a great deal of time during the day texting his wife and family members for reassurance. During mental status examination, the Veteran was anxious in presentation, but he was alert and oriented and able to respond appropriately and coherently. Indeed, the Veteran's speech was clear and coherent, although the examiner noted he was very talkative and provided too much detail. The Veteran's thought process was obsessive, and his thought content included repeating about his paranoia and its daily effect on his life. He denied having any hallucinations or suicidal or homicidal ideation, however. The Veteran's attention and concentration were fair, and the examiner noted that the Veteran's symptoms are extremely impairing in both occupational and social contexts. In this regard, the examiner noted the Veteran was constantly overwhelmed with anxiety of doing something wrong at work, paranoid of others, and overly obsessive in detail to the point of being overwhelmed. Based on the foregoing, the Board finds that, from August 8, 2016, the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating, but did not cause the level of impairment required for a disability rating of 100 percent. As shown above, the relevant evidence shows the Veteran continued to endorse symptoms associated with the 30 percent rating, including anxiety, suspiciousness, and chronic sleep impairment. He also continued to report symptoms associated with the 50 percent rating, such as panic attacks more than once a week, impaired judgement, and disturbances in motivation and mood, with newly reported symptoms of flattened affect and circumstantial speech. Notably, the evidence dated from August 8, 2016, shows the Veteran newly reported and demonstrated more severe symptoms, such as near-continuous panic and depression affecting ability to function independently, appropriately, or effectively, impaired impulse control with frequent outbursts of verbal aggression or rage, and inability to establish or maintain effective work and social relationships, all of which are contemplated by the 70 percent rating. The relevant evidence also shows the Veteran demonstrated other symptoms listed under the 70 percent rating, including difficulty adapting to stressful circumstances, obsessional rituals, and intermittent inability to perform activities of daily activities. As noted, the Veteran reported calling or texting his wife excessively during the workday and also endorsed marked impairment in his ability to initiate and maintain effective relationships with increased dependency on his wife for emotional stability, sense of safety, and basic decision making. The evidence shows the Veteran also endorsed symptoms not listed in the Rating Schedule, such as paranoia, tangential thinking, and startle response. The Veteran's startle response is deemed consistent with the anxiety, suspiciousness, and panic attacks that are contemplated by the 30 and 50 percent ratings. However, his paranoia and tangential thinking more closely approximate the severe symptoms and level of impairment associated with the 70 percent rating, as they indicate deficiencies in his thought process and content. Indeed, the evidence dated from August 8, 2016 clearly shows the Veteran experienced an increased level of impairment due to his service-connected disability with deficiencies at work and in interpersonal relations, judgement, thinking, and mood, which is consistent with a 70 percent rating. Notably, this level of impairment was not shown by the evidence dated prior to August 2016. However, the relevant evidence does not reflect the Veteran exhibited a total impairment in functioning despite his increased, more severe symptoms. In this regard, while the Veteran demonstrated paranoia and tangential thought process and the evidence shows that his symptoms severely impaired him in both occupational and social contexts, the evidence reflects that he was able to reality test to a point and demonstrated clear and coherent speech, which weighs against a finding of a gross, or total, impairment in thought process or communication. The Veteran also consistently denied experiencing any suicidal or homicidal ideation, delusions, or hallucinations and did not otherwise demonstrate grossly inappropriate behavior, disorientation to time or place, or memory loss for relative's names, his own occupation, or his name. The Board notes that the Veteran was noted to have intermittent inability to perform activities of daily activities, which is contemplated by the 100 percent criteria. However, the evidence shows that the Veteran remained able to care for his personal appearance and hygiene and maintained employment as an IT Specialist which suggests that his inability to perform daily activities was, indeed, no more than intermittent and not of the severity or duration to result in or more nearly approximate gross or total impairment in functioning. The Board also finds probative that, while the relevant evidence shows the Veteran demonstrated severe symptoms that impacted his mood, judgement, thinking, and ability to maintain interpersonal relationships at work and in other social settings, he demonstrated the ability to obtain alternative employment and remain close with his extended family despite his severe symptoms, which also weighs against a finding of total impairment of occupational and social functioning. Therefore, the preponderance of the evidence dated from August 2016 does not reflect that the Veteran exhibited the level of impairment associated with a 100 percent rating, as his symptoms are not shown to have resulted in a total occupational or social impairment. As such, a rating in excess of 70 percent is not warranted from August 8, 2016. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The evidence shows the Veteran has a current diagnosis of obstructive sleep apnea (OSA). See e.g., May 2015 VA treatment record. The Veteran has reported having symptoms of sleep apnea during service and also reported that his symptoms have been consistent since service. He has also asserted that the anxiety and depression associated with his service-connected PTSD and bipolar disorder disability contribute to his problems sleeping. See August 2016 VA Form 9. The Veteran is competent to report having symptoms of sleep apnea during and service. He is also competent to report that his symptoms of anxiety and depression contribute to his difficulty sleeping. Therefore, given the current diagnoses of OSA and service-connected PTSD and bipolar disorder, the Board finds the evidence of record is sufficient to trigger VA's duty to assist the Veteran by providing a VA examination and opinion to determine if his OSA is directly related to his periods of active duty or is secondary to his service-connected acquired psychiatric disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81-2 (2006). 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss is remanded. The Veteran was last afforded a VA examination in conjunction with this claim in August 2016; however, pure tone thresholds and speech discrimination scores were not provided at that time. In this regard, the August 2016 VA examiner noted that pure tone thresholds could not be tested at that time because of "fair to poor inter-test reliability with SRT and bone conduction thresholds." The examiner also noted that speech discrimination scores were not appropriate because of language difficulties, cognitive problems, and inconsistent word recognition scores that made the combined use of pure tone average and word recognition scores inappropriate. See August 2016 VA examination. The evidence shows that the Veteran had a follow-up appointment with the audiology clinic in September 2016, at which time pure tone air conduction and word recognition scores were performed. Notably, the examiner stated that the results of those tests were much improved and excellent, but the detailed results of the tests are not provided in the treatment record. See September 2016 VA treatment record. Given the foregoing, the Board finds additional development is needed before a fully informed decision can be rendered in this case. Specifically, the AOJ should obtain a copy of the pure tone and word recognition tests conducted in September 2016 and afford the Veteran a new VA audiologic examination. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dated from November 2016 to the present, including specifically the findings from the pure tone and word recognition tests conducted during outpatient treatment in September 2016. All attempts to obtain this evidence must be properly documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his obstructive sleep apnea (OSA). The Veteran's claims file must be made available to the examiner. Following review of the claims file and examination of the Veteran, the examiner must address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's OSA was incurred during or as a result of the Veteran's military service, to include the duties he performed therein? In answering the foregoing, the examiner must consider the medical and lay evidence of record, including the Veteran's report of having associated symptoms during and since service. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's OSA was caused by his service-connected PTSD and bipolar disorder? (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's OSA underwent or undergoes any incremental increase (aggravation) in disability, regardless of its permanence, by his service-connected PTSD and bipolar disorder? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear, well-reasoned rationale must be provided for all opinions, with consideration of the lay and medical evidence. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for an examination to determine the severity of his service-connected bilateral hearing loss. The electronic record must be made available to and reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.