SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

K. J. ALIBRANDO · 2021 · Case ID: 21016931

MIXED

Summary

The veteran, who served in the U.S. Navy from March 1987 to June 1994, appeals the denial of service connection for sleep apnea, an increased rating for his mood disorder, and entitlement to TDIU. The Board denied service connection for sleep apnea, finding the evidence did not establish a nexus to service. While the veteran had current sleep apnea and reported sleep issues in service, the Board found the VA examiner's opinion, which attributed the condition to current obesity and noted the lack of diagnostic evidence in service, to be highly probative. The Board also denied the claim for sleep apnea on a secondary basis, finding the VA examiner's opinion that mood disorders and sleep apnea are not medically related to be highly probative. Regarding the mood disorder, the Board granted an increased rating to 70 percent, finding the veteran's symptoms, including irritability, anger outbursts, poor impulse control, marital discord, and difficulty establishing intimate relationships, met the criteria for this rating level prior to September 10, 2020. However, the Board denied a 100 percent rating, concluding that the veteran's mood disorder alone did not cause total occupational and social impairment, noting that his non-service-connected cognitive disorder was more significantly impairing. The Board denied TDIU, finding the preponderance of the evidence did not support total occupational impairment due to service-connected disabilities alone, as the veteran was employed and any total impairment noted by examiners was primarily attributed to non-service-connected conditions.

Rationale

No objective evidence of OSA in service.; VA examiner's opinion attributed OSA to current obesity.; VA examiner found no medical relationship between mood disorder and OSA.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

16-15 656

Full Decision Text

Citation Nr: 21016931
Decision Date: 03/24/21 Archive Date: 03/24/21

DOCKET NO. 16-15 656
DATE: March 24, 2021

ORDER

Entitlement to service connection for sleep apnea is denied.

Entitlement to an initial increased rating of 70 percent, but no higher, for a mood disorder prior to September 10, 2020 is granted; and an increased rating in excess of 70 percent thereafter is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran’s sleep apnea is not secondary to service-connected disability and is not otherwise related to an in-service injury or disease.

2. Throughout the period on appeal, the severity, frequency, and duration of the Veteran’s mood disorder symptoms did not more closely approximate total occupational and social impairment.

3. The Veteran does not experience total occupational impairment as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to an initial increased rating of 70 percent, but no higher, for a mood disorder prior to September 10, 2020 have been met; and an increased rating in excess of 70 percent thereafter 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 9435.

3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from March 1987 to June 1994.

This appeal comes before the Board of Veterans’ Appeals (Board) from February 2013 and July 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record.

This matter was previously remanded in November 2019 for further development, to include requesting the Agency of Original Jurisdiction (AOJ) to obtain VA examinations, provide the Veteran a notice letter regarding his TDIU claim, and to obtain Social Security Administration (SSA) records. As this development has been completed, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998).

As a preliminary matter, additional evidence was added to the file after issuance of the October 2020 supplemental statements of the case (SSOC). However, the new evidence consists of VA medical records that are not relevant to the Veteran’s claims. As such, the Board finds that waiver and referral to the agency of original jurisdiction (AOJ) is not required. See 38 C.F.R. § 20.1305.

1. Entitlement to service connection for sleep apnea is denied.

The Veteran contends his sleep apnea (OSA) began during active service. In the alternative, he contends it is secondary to his service-connected mood disorder.

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis
or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id.

As to the first Hickson requirement, the Board finds the Veteran has a present OSA condition, which was first diagnosed in March 2011. See October 2012 VA Examination. Thus, the first prong is satisfied.

The second Hickson prong requires a showing of an incident or incurrence during active service. To this point, the Board considers the Veteran’s lay statements of having frequent trouble sleeping and insomnia during service, to be credible. See March 1994 and October 1990 Service Treatment Records. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily observable disabilities. 38 U.S.C. § 1153 (a) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to diagnose his own medical condition.

The last requirement is a nexus between the in-service reports by the Veteran and the current disability.

In February 2016, the Veteran underwent a VA examination. The VA examiner gave a negative nexus opinion, however in forming that opinion, he used too narrow of a standard. As such, the Board found this opinion to be inadequate for adjudicatory purposes and remanded for an addendum opinion. Thus, the February 2016 opinion will not be given any probative weight.

An addendum VA opinion was obtained in June 2020. The VA examiner indicated that after a review of the Veteran’s file and service treatment records, it was less likely than not that the Veteran’s OSA occurred in service, within one year from separation from service, or is etiologically related to service. The examiner explained that even though the Veteran reported trouble sleeping in service, those reports were not diagnostic in nature, but merely historical. Instead, there is no objective evidence to support a diagnosis in service or related to service. The Veteran described insomnia and trouble sleeping, however people with sleep apnea have no trouble falling asleep or staying asleep. The VA examiner cited a recent 2020 Journal of Obesity study and instead attributed the Veteran’s sleep apnea to his current obesity which was not present in service as the Veteran weighed 206 pounds at separation and currently weighs 230 pounds. The Board finds this opinion highly probative as the VA examiner thoroughly reviewed the Veteran’s records, gave a rationale, and cited to a medical study in support of their contentions.

Weighing the probative evidence of record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s present OSA condition was incurred in or aggravated by his active service. No medical opinion in support of such a finding is found in the record. The third Hickson prong is not satisfied, and the claim must be denied on a direct service connection basis.

The Board will now consider whether the Veteran is entitled to service connection for OSA on a secondary service connection basis, as the Veteran contended that in the alternative, his OSA was caused or aggravated by his service-connected mood disorder.

Service connection may be established 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b).

As has already been established, the Veteran has a current diagnosis of OSA. Thus, the first Allen element is satisfied.

The second Allen element requires a showing that the current disability was either proximately caused or proximately aggravated by a service-connected disability. A VA opinion was obtained in June 2020. The VA examiner opined it is less likely than not that the Veteran’s OSA is proximately due to, the result of, or aggravated beyond its natural progression by the Veteran’s service-connected mood disorder. The VA examiner indicated that sleep apnea and mood disorders are not medically related. There is no evidence to suggest the Veteran’s mood disorder would cause or affect the Veteran’s OSA. The Board affords this opinion high probative weight, as the examiner’s conclusions are drawn from appropriate consideration of the record and a thorough examination based on sound medical principles.

The Board finds the preponderance of the evidence is against a finding that the Veteran’s OSA was proximately caused or proximately aggravated by his mood disorder. No medical opinion of record suggests that the Veteran’s mood disorder has impacted his OSA. As the preponderance of the evidence is against the second Allen element, the claim must be denied.

2. Entitlement to an initial increased rating of 70 percent, but no higher, for a mood disorder prior to September 10, 2020; and an increased rating in excess of 70 percent thereafter is denied.

The Veteran contends he is entitled to a 100 percent rating for his service-connected mood disorder as his symptoms cause total occupational and social impairment. See January 2021 Appellate Brief.

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b).

Pursuant to the General Rating Formula for Mental Disorders, a 50 percent disability rating requires 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; or difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating for PTSD is assigned when the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, with 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.

A 100 percent rating is assigned when the Veteran has total occupational and social impairment with symptoms such as: gross impairment in thought processes or communication
and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, with 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.

A 100 percent rating is assigned when the Veteran has total occupational and social impairment with symptoms such 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.

In September 2011, the Social Security Administration (SSA) found the Veteran to be totally disabled primarily due to a non-service-connected organic brain syndrome, with his anxiety disorder being secondary along with pneumonia, degenerative disc disease, and an affective disorder. SSA determinations are not binding on the Board.

A January 2012 VA treatment record noted the Veteran underwent a mental status examination. He was noted to be irritable and then was able to calm down; his cognitive functioning was alert and needed to slow down in speech; eye contact was good; motor function was within normal limits; his speech was pressured with some flight of ideas; no suicidal or homicidal ideation was present; and his judgment was fair.

An October 2012 VA treatment record from his treating VA neuropsychologist indicated the Veteran was suffering from anxiety and depression and has significant impairment in social functioning (marital discord, divorce, domestic violence, and difficulty establishing intimate relationships).

The Veteran underwent a VA examination in October 2012. The VA examiner indicated the Veteran had two mental disorders, his service-connected mood disorder and a non-service-connected cognitive disorder. The VA examiner further indicated he could differentiate between the symptoms of each diagnosis. For the mood disorder, the Veteran experienced symptoms of irritability, anger outbursts, poor impulse control, and trouble sleeping. For the non-service connected cognitive disorder, the Veteran experienced symptoms of difficulty with thought processes; tangential, circumstantial, and perseverative thinking; problems with short-term memory as evidenced by 1 out of 3 words at 5 minutes; and difficulty processing, focusing, and concentrating, with serial 7’s with many errors.

The October 2012 VA examiner indicated the Veteran suffered from total occupational and social impairment, however he explained that the Veteran is more impaired by his non-service connected cognitive disorder as it causes problems with organization, focus, and thought processes, and is severe to extreme in severity. The Veteran’s mood disorder does cause social and occupational functioning at the moderate level with anger and irritability as well as some problems sleeping at night. The examiner also noted the Veteran experienced the following symptoms as a result of both his mental disorders: depressed mood; anxiety; chronic sleep impairment; impaired judgment; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The VA examiner also performed a mental status examination and indicated the Veteran presented as alert, calm, and with a normal rate of speech but was hyperverbal. His mood was euthymic; affect was full range and appropriate; thought processes ranged from goal oriented to being circumstantial, tangential, preservative at times; there was no suicidal or homicidal ideations present; no psychotic features present; insight was somewhat limited and judgment was fair; fully oriented to person, place, time; and circumstance; he was able to recall 3 out of 3 words initially , but only 1 out of 3 words at 5 minutes; he had multiple errors on serial 7s and lost his place and was confused during the process; and he was able to recall the presidents back to order since President Reagan.

A February 2013 letter from the Veteran’s treating neuropsychologist indicated the Veteran experienced anxiety, depression, and an impairment in social functioning due to his mood disorder. She also indicated that it was her opinion that the Veteran could not return to his former job due to changes in his interpersonal functioning from his mood disorder and his non-service-connected cognitive disorder.

A November 2017 VA treatment record noted that the Veteran was unable to remember information unless he wrote it down. The Veteran reported he had to take multiple breaks to complete
of 3 words at 5 minutes; he had multiple errors on serial 7s and lost his place and was confused during the process; and he was able to recall the presidents back to order since President Reagan.

A November 2017 VA treatment record noted that the Veteran was unable to remember information unless he wrote it down. The Veteran reported he had to take multiple breaks to complete a task because he felt confused and scattered and often had trouble organizing his thoughts. The Veteran reported current passive suicidal ideation and experiencing unusual sensory experiences (e.g., seeing “spiritual” images since childhood, being a “traveler” and seeing things in the past, present, and future) but denied auditory and visual hallucinations.

Here, the Board finds the preponderance of the evidence weighs in favor of a finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, which entitles the Veteran to a 70 percent rating. The record notes passive suicidal ideation, marital discord, domestic violence and difficulty establishing intimate relationships such that an initial rating of 70 percent is warranted.

A 100 percent rating is not warranted as the preponderance of the evidence does not show the Veteran’s symptoms from his mood disorder alone causing total occupational and social impairment.

While the SSA noted the Veteran was totally occupationally and socially impaired, they noted the impairment was primarily due to a non-service-connected organic brain syndrome, with his anxiety disorder being secondary along with pneumonia, degenerative disc disease, and an affective disorder. In addition, the October 2012 VA examiner did indicate the Veteran suffered from total occupational and social impairment, however he explained that the Veteran is more impaired by his non-service connected cognitive disorder as it causes problems with organization, focus, and thought processes, and is severe to extreme in severity. The examiner instead noted the Veteran’s mood disorder causes social and occupational functioning at the moderate level with anger and irritability as well as some problems sleeping at night. Finally, while the February 2013 letter from the Veteran’s treating neuropsychologist indicated that it was her opinion that the Veteran could not return to his former job due to changes in his interpersonal functioning, she specifically stated it was due to both his mood disorder and his non-service-connected cognitive disorder. None of the evidence of record shows that prior to September 10, 2020, the Veteran’s mood disorder on its own resulted in total occupational and social impairment. As such, a 100 percent rating is not warranted for the Veteran’s mood disorder

The Veteran underwent a VA examination in September 2020. The VA examiner indicated he could not differentiate between the symptoms of the Veteran’s mood disorder and his cognitive disorder as there was significant overlap. He noted the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran exhibited the following symptoms: depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; circumstantial, circumlocutory or stereotyped speech; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; impaired impulse control, such as unprovoked irritability with periods of violence.

The Veteran also submitted a private medical opinion in the form of a Disability Benefits Questionnaire (DBQ) in December 2020. The Veteran’s private physician indicated he reviewed the Veteran’s private and VA treatment records. He noted the Veteran experienced total occupational and social impairment. The following symptoms were noted: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; memory loss for names of close relatives, own occupation, or own name; flattened affect; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought process
the Veteran experienced total occupational and social impairment. The following symptoms were noted: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; memory loss for names of close relatives, own occupation, or own name; flattened affect; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought process and communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work and a work like setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; 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.

After a review of the evidence, the Board finds that after September 10, 2020, a 100 percent rating is not warranted as the preponderance of the evidence does not show the Veteran’s symptoms from his mood disorder alone cause total occupational and social impairment. The Board has considered the December 2020 DBQ submitted by the Veteran; however, it is less probative than the September 2020 VA examination as the private physician did not list or discuss the Veteran’s separate non-service-connected cognitive disorder. In addition, the private physician did not discuss how the Veteran could be totally occupationally disabled despite also noting he is currently employed full-time and has been employed since November 2018 as a telecommunication specialist.

As such, the Board finds the symptoms of the Veteran’s service-connected mood disorder more nearly approximate the 70 percent disability rating, and the claim for an increase must be denied.

3. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

The Veteran seeks a TDIU due to his service-connected disabilities.

Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341 (a) (2013).

The Veteran has been granted an initial rating of 70 percent for his service-connected mood disorder in this Board decision. His only other service-connected disability is recurrent viral gastroenteritis which has been noncompensable since March 2012. As such, the Veteran meets the schedular criteria from March 19, 2012.

The Veteran underwent a VA examination in October 2012. The VA examiner indicated the Veteran had two mental disorders, his service-connected mood disorder and a non-service-connected cognitive disorder. The VA examiner further indicated he could differentiate between the symptoms of each diagnosis. The October 2012 VA examiner indicated the Veteran suffered from total occupational and social impairment, however he explained that the Veteran is more impaired by his non-service connected cognitive disorder as it causes problems with organization, focus, and thought processes, and is severe to extreme in severity. The VA examiner further clarified that the Veteran’s mood disorder does cause
his anxiety disorder being secondary along with pneumonia, degenerative disc disease, and an affective disorder. SSA determinations are not binding on the Board.

The Veteran underwent a VA examination in October 2012. The VA examiner indicated the Veteran had two mental disorders, his service-connected mood disorder and a non-service-connected cognitive disorder. The VA examiner further indicated he could differentiate between the symptoms of each diagnosis. The October 2012 VA examiner indicated the Veteran suffered from total occupational and social impairment, however he explained that the Veteran is more impaired by his non-service connected cognitive disorder as it causes problems with organization, focus, and thought processes, and is severe to extreme in severity. The VA examiner further clarified that the Veteran’s mood disorder does cause social and occupational functioning at the moderate level with anger and irritability as well as some problems sleeping at night.

The Veteran also submitted a VA Form 21-8940 in September 2020 reporting that he has been employed full-time as a telecommunications specialist since November 2018.

The Board finds that the preponderance of the evidence is against finding a TDIU is warranted. While the SSA noted the Veteran was totally occupationally impaired, they noted the impairment was primarily due to a non-service-connected organic brain syndrome, with his anxiety disorder being secondary, along with pneumonia, degenerative disc disease, and an affective disorder.

In addition, the October 2012 VA examiner did indicate the Veteran suffered from total occupational impairment, however he explained that the Veteran is more impaired by his non-service connected cognitive disorder as it causes problems with organization, focus, and thought processes, and is severe to extreme in severity. The examiner instead noted the Veteran’s mood disorder causes social and occupational functioning at the moderate level with anger and irritability as well as some problems sleeping at night.

Furthermore, while the February 2013 letter from the Veteran’s treating neuropsychologist indicated that it was her opinion that the Veteran could not return to his former job due to changes in his interpersonal functioning, she specifically stated it was due to both his mood disorder and his non-service-connected cognitive disorder.

Finally, while the Veteran submitted a private (DBQ) noting that he is totally occupationally impaired, the private physician did not discuss the Veteran’s cognitive disorder, and the record reflects the Veteran is currently gainfully employed and has been employed since November 2018. See VA Form 21-8940.

In sum, the evidence shows the Veteran’s service-connected mood disorder does result in some occupational impairment, but the weight of the evidence does not demonstrate that the Veteran’s service-connected mood disorder alone is of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. Any opinion of record that found the Veteran to be totally occupationally impaired considered the symptoms of the Veteran’s non-service-connected cognitive disorder which the Board may not consider in deciding the Veteran’s TDIU claim. See 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

(Continued on the next page)

For these reasons, the Board finds that the criteria for a TDIU have not been met or more nearly approximated. The evidence is not in equipoise and, as such, the benefit of the doubt rule is inapplicable in this case.

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board L. Holcombe, 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.

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