Citation Nr: 18160694
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-37 842
DATE:	December 27, 2018
ORDER
Entitlement to service connection for sleep apnea is denied.
Entitlement to a rating in excess of 30 percent for major depressive disorder is granted.
FINDINGS OF FACT
1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea.
2. The Veteran’s depressive disorder has resulted in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood; the disability is not manifested by total social and occupational impairment.
CONCLUSIONS OF LAW
1. The criteria for service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2. The criteria for an evaluation of 70 percent, and no higher, for major depressive disorder, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.22, 4.124(a), 4.130, Diagnostic Code 9434.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from June 2008 to July 2011.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
1. Entitlement to service connection for sleep apnea.
Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).  Generally, service connection requires: (1) a present disability; (2) an 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, the so-called “nexus” requirement.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
The Veteran is seeking service connection for sleep apnea, which he contends is related to his service or to his service-connected depressive disorder.  
The Board concludes that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d).
VA treatment records show symptoms of sleep inertia, tiredness and daytime fatigue but do not contain a diagnosis of sleep apnea.  Home sleep studies in June and July 2013 were negative for sleep apnea.  
In the May 2015 VA examination, the examiner evaluated the Veteran and determined that, despite the Veteran reported difficulty going to sleep and getting up in the morning, he did not have a diagnosis of sleep apnea. The examiner also noted that there was no evidence of any clinical indicators or symptoms consistent with sleep apnea, such as witnessed apnea, snoring, daytime sleepiness, daytime hypersomnolence and unrestful sleep.  
In an addendum opinion, the VA examiner opined that it was less likely as not that the Veteran’s sleep disturbances noted on active duty were in any way related to a diagnosis of obstructive sleep apnea.  The examiner noted that the Veteran’s reported sleep disturbances more related to his documented mental health issues or scheduling issues.  With respect to a relationship between the Veteran’s sleep problems and his service-connected major depressive disorder, the examiner noted that obstructive sleep apnea is the result of upper airway resistance, and there was no evidence to support that the Veteran’s service-connected major depressive disorder in any increases upper airway resistance thus causing or aggravating any issues of sleep apnea.    
While the Veteran believes he has a current diagnosis of sleep apnea, he is not competent to provide a diagnosis in this case.  The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.  
Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for sleep apnea.  Therefore, the claim must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Entitlement to a rating in excess of 30 percent for major depressive disorder.
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.
The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
The Veteran bears the burden of presenting and supporting his claim for benefits.  38 U.S.C. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  
The RO has rated the Veteran’s unspecified depressive disorder under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s).  See 38 C.F.R § 4.130, Diagnostic Codes 9434 (major depressive disorder).  The General Rating Formula is as follows:
A 30 percent rating is warranted where there is 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).  Id.
A 50 percent rating is warranted where there is 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; difficulty in establishing and maintaining effective work and social relationships.  Id.
A 70 percent rating is warranted where there 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 work like setting); inability to establish and maintain effective relationships.  Id.
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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.
Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).
The Veteran was afforded a VA examination in May 2014.  The sole diagnosis was major depressive disorder, though the examiner did note that the Veteran had more than one mental disorder diagnosed.  Socially, the Veteran reported two recently terminated relationships and that he lived alone and only talked to his immediate family.  He stated that he did not have any friends, but only had acquaintances he met with once or twice a month to drink, which the Veteran did to excess.  Occupationally, the Veteran reported that he finished two semesters of college and had been fired from multiple jobs.  He reported that he had been doing landscaping and construction work for the past week.  When not at work, he reported that he sits in his house and consumes alcohol.  In addition to his alcohol abuse, the Veteran reported that he used marijuana about 5 or 6 times in the past month.  He also stated that he liked to hunt but that his parents took all of his guns away.  Among the Veteran’s symptoms were depressed mood and chronic sleep impairment.  The examiner opined that the Veteran’s mental diagnoses caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  
In a February 2016 VA examination, the Veteran was diagnosed with major depressive disorder, alcohol use disorder, and cannabis use disorder.  Symptoms specific to the major depressive disorder were depression and lack of motivation.  The examiner opined that the Veteran’s mental diagnoses caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The Veteran reported that he “can’t keep relationships or friendships” and that he had a child to be born in April 2016.  He also stated that he lost contact with his friends, except for a couple of drinking buddies.  Occupationally, he reported that he dropped out of college, as he “didn’t have the drive anymore.”  He also stated that he did not keep jobs long and that he did not deal well with people.  The Veteran had several short-term jobs since the May 2014 VA examination.  Since the previous VA examination, the Veteran reported that he was arrested for punching someone in the face and that he was drinking and smoking marijuana every day.  Among the Veteran’s symptoms were depressed mood and suspiciousness.  The examiner noted that the Veteran’s major depressive disorder was at the same level as the May 2014 VA examination.  
In a July 2018 examination, the Veteran was again diagnosed with major depressive disorder, alcohol use disorder, and cannabis use disorder.  He reported depressed mood nearly every day for two-week periods, during which time he experienced diminished interest in relationships and daily activities.  He also experienced fleeting suicidal ideation with no plan or intent approximately once a week, though he stated that he would not act on his suicidal ideations because of his son.  The examiner noted occupational and social impairment with deficiencies in most areas.  Socially, the Veteran reported that he had a two-year-old son whom he saw every other weekend but indicated he could not maintain relationships.  He had difficulty trusting people and was easily irritated and on guard against people disrespecting him.  Occupationally, the Veteran reported that he had had “about 50 jobs” since leaving service and that he was currently working selling insurance.  He reported that he doesn’t deal well with authority and was easily irritated by his peers.  Among the Veteran’s symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation nad mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.  
On review of the record, the Board finds that the disability picture presented by the Veteran’s unspecified depressive disorder warrants an evaluation of 70 percent, and no higher, throughout the course of the appeal. On review of the record, the Board finds that the disability picture presented by the Veteran’s PTSD warrants an evaluation of 70 percent, and no higher. The Board notes that the evidence indicates the Veteran’s service-connected depressive disorder is manifested by occupational and social impairment, with deficiencies in most areas. The Board notes that the VA treatment records indicated the Veteran had problems with work, family relations, judgment, and mood. He also testified to periods of unprovoked violence and admitted that he could not adapt to changing or stressful situations.
The Veteran has also repeatedly endorsed suicidal ideations, which is supportive of a higher rating.  The Board notes that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas.  See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas).  As such, affording the Veteran the benefit of the doubt, the Veteran’s depressive disorder manifests symptoms more nearly approximating an evaluation of 70 percent disabling.  Therefore, an evaluation of 70 percent disabling is granted.
The symptoms and overall impairment did not, however, more nearly approximate the total occupational and social impairment required for a 100 percent rating.  Although the Veteran has admitted to suicidal ideations, there is no evidence that the Veteran has been in persistent danger of hurting himself or others.  Furthermore, there is no evidence of total social impairment warranting a total disability rating.  There is no indication of gross impairment of thought processes or communication.  The Board has carefully considered the overall impact of the disability throughout the appeal period on the Veteran’s functioning.  The Board finds that it has not been productive of total social and occupational impairment at any period under appeal.   That is, neither the symptoms nor overall impairment caused by the Veteran’s service-connected depressive disorder more nearly approximated total occupational and social impairment.
Accordingly, the Board finds that a 70 percent rating is warranted throughout the appeal period.  Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
Finally, the Board acknowledges the Veteran’s claim that his major depressive disorder has rendered him unemployable. A claim for a total disability evaluation based on individual unemployability (TDIU) is part of an increased rating claim when such TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009).  Although the evidence of record, including the VA examinations and VA treatment records, shows that the Veteran has had some difficulty maintaining employment, the Veteran is most recently shown to be self-employed.  The last VA examination indicated that he was selling insurance.  The Veteran’s representative has not made specific contentions regarding how the employment and work during the appellate period does not constitute substantially gainful employment.  On this record, the Board finds that additional consideration of TDIU is not warranted at this time. 
 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Thompson, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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