OBSTRUCTIVE SLEEP APNEA

RAY BARTO SLABBEKORN, JR. · 2022 · Case ID: A22006010

MIXED

Summary

The Veteran, an Army Veteran who served from September 1988 to June 1992, appeals the denial of increased disability ratings for his service-connected idiopathic hypersomnolence, later diagnosed as idiopathic hypersomnia. The Veteran initially received a 30 percent rating in July 2004, which was later increased to 50 percent effective April 28, 2015. The Veteran sought a higher rating, arguing that a June 2011 decision was not final and his June 9, 2010, claim for an increased rating remained pending. The Board agreed that the June 2011 decision was not final due to a lack of reasons and bases. The Board reviewed the Veteran's symptoms, including anxiety, concentration issues, sleep impairment, and difficulties with motivation and relationships, noting the examiner's observation of the Veteran appearing fatigued and drowsy during an examination. The Board also considered the Veteran's diagnosed personality disorder, which is not service-connected but can interact with service-connected conditions. Ultimately, the Board found that the Veteran's symptoms warranted a 50 percent disability rating from June 9, 2010, to January 22, 2019, but the evidence did not support a higher rating for the periods thereafter. Service connection for idiopathic hypersomnolence is granted at 50 percent from June 9, 2010, with claims for higher ratings denied.

Rationale

June 2011 decision was not final due to lack of reasons and bases; Symptoms approximated occupational and social impairment with reduced reliability and productivity; Symptoms included anxiety, concentration issues, sleep impairment, and difficulties with motivation and mood

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190429-7534

Full Decision Text

Citation Nr: A22006010
Decision Date: 04/04/22 Archive Date: 04/04/22

DOCKET NO. 190429-7534
DATE: April 4, 2022

ORDER

Entitlement to a 50 percent disability rating, but not higher, from June 9, 2010 to April 28, 2015, for service-connected idiopathic hypersomnolence is granted.

Entitlement to a disability rating in excess of 50 percent prior from April 28, 2015 to January 22, 2019, for service-connected idiopathic hypersomnia, previously rated as idiopathic hypersomnolence, is denied.

Entitlement to a disability rating in excess of 70 percent prior from January 22, 2019, for service-connected idiopathic hypersomnia, previously rated as idiopathic hypersomnolence, is denied.

FINDINGS OF FACT

1. A June 20, 2011, simplified notice letter decision failed to provide reasons and bases for the decision and the evidence considered, and is therefore not final; the June 9, 2010, informal application for a rating increase remains pending.

2. The Veteran's symptoms more closely approximated occupational and social impairment with reduced reliability and productivity from June 9, 2010, the date of his pending claim.

3. The Veteran's service-connected idiopathic hypersomnolence was not manifested by symptoms approximating occupational and social impairment with deficiencies in most areas prior to January 22, 2019.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an evaluation of 50 percent disabling from June 9, 2010, to April 28, 2015, for service-connected idiopathic hypersomnolence have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 8868-6847.

2. The criteria for entitlement to an evaluation in excess of 50 percent disabling from April 28, 2015, to January 22, 2019, for service-connected idiopathic hypersomnia, previously rated as idiopathic hypersomnolence, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9499-9410.

3. The criteria for entitlement to an evaluation in excess of 70 percent disabling from January 22, 2019, for service-connected idiopathic hypersomnia, previously rated as idiopathic hypersomnolence, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9499-9410.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1988 to June 1992.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10.

If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d
facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Procedural history

A July 2004 rating decision granted the Veteran entitlement to service connection for idiopathic hypersomnolence (sleep disorder with fatigue) as due to an undiagnosed illness and assigned a 30 percent disability rating under hyphenated diagnostic code 8868-6847 effective November 19, 1997.

The July 2004 rating decision noted that the Rating Schedule provided no specific diagnostic code for idiopathic hypersomnolence. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. When a disability is not specifically listed, the DC will be built up, meaning that the first two digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last two digits will be "99." 38 C.F.R. § 4.27.

Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the assigned rating. The hyphenated disability will be rated by analogy under a DC for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27.

The July 2004 decision reviewed several closely related disabilities to include narcolepsy, anxiety and chronic fatigue syndrome but found that the most analogous condition was sleep apnea. In this regard, Diagnostic Code 8868 refers to undiagnosed condition of the lung and pleura while diagnostic code 6847 refers to obstructive sleep apnea.

The Veteran subsequently requested an increased rating for his service-connected idiopathic hypersomnolence on May 27, 2010. The agency of original jurisdiction (AOJ) denied the Veteran's claim for entitlement to an increased disability rating in a simplified notice letter (SNL) dated June 20, 2011. The notification letter found that the severity of the Veteran's condition had not changed.

On April 28, 2015, the Veteran again sought an increased disability rating for his service-connected idiopathic hypersomnolence.

In August 2015, a VA examiner updated the Veteran's diagnosis as idiopathic hypersomnia in accordance with The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). An August 2015 rating decision recharacterized the Veteran's condition as idiopathic hypersomnia and assigned diagnostic code 9499-9410. That decision increased the Veteran's disability rating to 50 percent effective April 28, 2015, the date the Veteran filed his claim for an increased rating.

The Veteran appealed and opted into the Rapid Appeals Modernization Program (RAMP) and sought Higher Level Review. That review came in a February 2019 rating decision, wherein the AOJ raised the Veteran's disability rating for service-connected idiopathic hypersomnia to 70 percent disabling effective January 22, 2019, but denied a rating above 30
Manual of Mental Disorders, Fifth Edition (DSM-V). An August 2015 rating decision recharacterized the Veteran's condition as idiopathic hypersomnia and assigned diagnostic code 9499-9410. That decision increased the Veteran's disability rating to 50 percent effective April 28, 2015, the date the Veteran filed his claim for an increased rating.

1. Entitlement to a 50 percent evaluation for idiopathic hypersomnolence from June 9, 2010, to April 28, 2015

The crux of the Veteran's argument is that he is entitled to a disability rating in excess of 30 percent prior to April 28, 2015, and in excess of 50 percent prior to January 22, 2019. More specifically, the Veteran alleges that he did not receive the June 2011 notification letter and that the June 2011 SNL decision failed to provide reasons and bases for the decision and the evidence considered. The Veteran maintains that the June 2011 decision was therefore not final and that his June 9, 2010, claim remained pending.

The Board agrees and finds that the June 2011 rating decision was not final. The June 20, 2011, notification letter merely states that the Veteran's service-connected hypersomnolence has not changed. No other information is provided. There is no indication of any evidence that was reviewed, to include whether available examinations in the file which pertained to the claim.

Turning to the issue at hand, during the period at issue the Veteran's idiopathic hypersomnia was rated by analogy to obstructive sleep apnea and generalized anxiety disorder.

DC 6847, which rates sleep apnea, provides a 30 percent rating for persistent day-time hypersomnolence. A 50 percent rating is warranted for symptoms requiring use of a breathing assistance device, such as a Continuous Positive Airway Pressure (CPAP). A maximum schedular rating of 100 percent rating is provided for chronic respiratory failure with carbon dioxide retention or cor pulmonale; or a required tracheostomy. 38 C.F.R. § 4.97, DC 6847.

Under General Rating Formula for Mental Disorders a 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130.

A 50 percent rating is warranted for 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 compete 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 evaluation is warranted for 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 maximum 100 percent evaluation 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.

Psychological assessments in September 2008 and September
irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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.

Psychological assessments in September 2008 and September 2009 related to his employment found no issues with reasoning or emotional stability and therefore was psychologically stable to perform his duties as an armed officer.

At the same time, available records indicate that the Veteran was terminated from his employment after being placed on the night shift, which the Veteran alleges exacerbated the symptoms of his idiopathic hypersomnolence.

At the March 2011 VA examination for miscellaneous respiratory diseases, the examiner found that the Veteran's idiopathic hypersomnolence causes decreased concentration, poor social interactions, difficulty following instructions, lack of stamina, weakness, and fatigue. The Board specifically notes that the examiner documented the Veteran appeared fatigued and drowsy at a 2:30 p.m. examination and was found to be napping in the waiting room when called to the exam area.

At an August 2015 VA psychiatric examination, the Veteran was diagnosed with idiopathic hypersomnia and personality disorder. The examiner noted the Veteran was prompt for his session but was anxious, agitated with circumstantial speech. However, there was no indication of suicidal or homicidal ideation and no evidence of psychosis. The examiner found symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, forgetting names, directions, or recent events, circumstantial or circumlocutory or stereotyped speech, disturbances of motivation or mood and difficulty establishing and maintaining effective work and social relationships.

The Board finds that a 50 percent evaluation, but not higher, is warranted for the Veteran's service-connected idiopathic hypersomnia. Throughout the appeal period, the Veteran has manifested many of the symptoms specifically contemplated by a 50 percent evaluation under the general rating formula. The Veteran reported experiencing, anxiety, problems with concentration, difficulties maintaining relationships, and disturbances to motivation and mood. The Veteran also consistently reported the primary symptom of chronic sleep impairment.

The Board must note that the Veteran has been diagnosed with a personality disorder. Personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Personality disorders are not entitled to the presumption of soundness under 38 U.S.C. § 1111, thereby not requiring VA to show by clear and unmistakable evidence that the personality disorder preexisted service. See Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed.Cir.2012). Disability that results from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127.

A July 1, 2010, psychological evaluation diagnosed the Veteran with personality disorder NOS with mild paranoid ideation being prominent. This was again referenced, by history, in an August 2015 VA psychiatric examination. The examiner noted that the Veteran's symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, forgetting names, directions or recent events, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation or mood and difficulty establishing and maintaining effective work and social relationships are likely related to both the Veteran's idiopathic hypersomnolence and his personality disorder and it is impossible to differentiate what portions of the symptoms are attributable to which as the conditions have been continuous, and biologically and behaviorally interactive. See August 20, 2015, Medical opinion. Therefore, the Board has taken these symptoms into consideration.

The Board also notes that the Veteran has a history of employment with the Department of Veterans Affairs which was terminated and has repeatedly intermingled his complaints regarding that termination and his complaints about the procedural history involving this case. At issue before the Board is whether the Veteran's disability picture is worse than that contemplated by his currently assigned disability ratings. That said, the Board acknowledges the Veteran's allegations that he had employment difficulties, up to and including termination, as a result of his
disorder and it is impossible to differentiate what portions of the symptoms are attributable to which as the conditions have been continuous, and biologically and behaviorally interactive. See August 20, 2015, Medical opinion. Therefore, the Board has taken these symptoms into consideration.

Based on the severity, frequency, and duration of the symptoms reported, the Board finds that an initial 50 percent evaluation is appropriate. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).

As noted earlier, an August 2015 rating decision increased the Veteran's disability rating to 50 percent effective April 28, 2015. The August 2015 rating decision found April 28, 2015, to be the earliest possible date as it was the date of the Veteran's application for an increased rating.

The effective date assigned will be the date of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).

In light of the earlier finding that the June 2010 claim remained pending, the Board finds that, based on the totality of the evidence, the Veteran's symptoms more closely approximated occupational and social impairment with reduced reliability and productivity throughout the appeal period. Therefore, a 50 percent rating for idiopathic hypersomnolence is warranted effective June 9, 2010, the date the Veteran's still pending informal claim for an increased rating was filed.

2. Entitlement to a disability rating in excess of 50 percent disabling from April 28, 2015, to January 22, 2019, for service-connected idiopathic hypersomnia, previously rated as idiopathic hypersomnolence

3. Entitlement to a disability rating in excess of 70 percent prior from January 22, 2019, for service-connected idiopathic hypersomnia, previously rated as idiopathic hypersomnolence

The Board has considered whether a disability rating in excess of 50 percent disabling is warranted for the period from June 9, 2010, to January 22, 2019, but finds that the totality of the evidence fails to support a finding that the Veteran's symptoms resulted in occupational and social deficiencies in most areas. Further, the evidence of record does not support a rating in excess of 70 percent for the period from January 22, 2019.

It is not just the presence of psychiatric symptoms that mandates the assignment of a higher rating, but rather, the Board must evaluate how the reported symptoms impact the Veteran's occupational and social functioning. Vazquez-Claudio, 713 F.3d at 117. That is, for instance, simply because the Veteran has had anxiety, chronic sleep impairment and depression, and because the 70 percent level contemplates anxiety, chronic sleep impairment and concentration issues does not mean his psychiatric disorder rises to the 70 percent level. Indeed, the 30 percent and 50 percent criteria each contemplate some form of anxiety, chronic sleep impairment and concentration or memory loss.

Additionally, the Board has taken into consideration the frequency, severity, and duration of the Veteran's symptoms, as well as his statements regarding his assessment of the severity of his symptoms. However, the symptoms present here, and their resulting effects, do not rise to the level of the next higher rating.

In light of the above, the Board finds that the Veteran is entitled to a 50 percent disability rating for service-connected idiopathic hypersomnia from April 28, 2015, to January 22, 2019. However, a disability rating in excess of 50 percent is not warranted at any time from April 28, 2015, to January 22, 2019, nor in excess of 70 percent from January 22, 2019.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board V. Woehlke

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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