Citation Nr: 1429555 Decision Date: 06/30/14 Archive Date: 07/03/14 DOCKET NO. 09-14 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to nasal trauma. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Attorney Matthew D. Hill ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from April 1978 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) from October 2007 and August 2013 rating decisions of the above Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU was previously before the Board in February 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. Sleep apnea was caused by the service-connected nasal trauma. 2. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2013). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). 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). A March 2012 VA examiner opined that it was 50 percent likely that the diagnosed mild sleep apnea was secondary to nasal trauma that resulted in nasal airway obstruction. At another VA examination later in March 2012 the examiner wrote that a deviated nasal septum is not causative for sleep apnea and that he therefore disagreed with the other VA examiner. However, he noted that a deviated nasal septum is an aggravating factor for obstructive sleep apnea. In November 2013 a private pulmonologist reviewed the record and noted that the Veteran had been diagnosed with nasal pyramid and nasal septal deformity with partial obstruction, moderate, secondary to nasal trauma. In June 2009 the Veteran was diagnosed with obstructive sleep apnea after undergoing a sleep study following a history of loud snoring, witnessed apneas, daytime sleepiness, and non-restorative sleep. The pulmonologist opined that it was at least as likely as not that the Veteran's obstructive sleep apnea was caused by the service-connected nasal trauma. He cited medical literature stating that a deviated septum is a risk factor for sleep apnea. Further, while the record shows the presence of other risk factors it did not show obesity. In light of the positive medical opinion from the pulmonologist, the Board finds that service connection is warranted for sleep apnea. II. TDIU The Veteran contends that he is entitled to TDIU benefits. Based on the evidence of record, the Board finds that entitlement to a TDIU based on his service-connected disabilities is warranted. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). Notwithstanding the grant of service connection for sleep apnea herein, service connection has been in effect for dysthymic disorder, rated 70 percent disabling; status post cervical spine injury with degenerative changes at C4-C5, limitation of motion, cervical spondylosis and C6-C7 radiculopathy, rated 20 percent disabling; status post nasal trauma, with nasal pyramid and nasal septal deformity with partial obstruction, rated 10 percent disabling; right carpal tunnel syndrome, rated 10 percent disabling; and bilateral tinnitus, rated 10 percent disabling. Thus, the Veteran meets the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a) because his combined evaluation is 80 percent and an individual disability was rated at least 40 percent. The record shows that the Veteran last worked as a security officer in July 2006. In 2006 and 2007 he attempted to work as a flea market vendor but had to stop because of his medical conditions. A private vocational expert reviewed the record in December 2013 and opined that it was at least as likely as not and to a high degree of vocational certainty that the service-connected dysthymic disorder and cervical spine disorder had a direct impact on the Veteran's ability to work on a full time, sustained basis and prevented him from performing any substantially gainful employment. The expert felt to a high degree of vocational certainty that the dysthymic disorder alone was totally disabling, with the cervical condition adding to the level of impairment. The record showed that the medication the Veteran took for neck pain precluded driving for 12 hours and that the combined side effects of the Veteran's psychiatric and pain medication may periodically preclude activities requiring mental alertness, clear judgment, and/or physical coordination. The Veteran would be unable to meet the mental demands of any type of substantially gainful work, even if accommodations were made. He would have difficulty appropriately interacting with others and with completing tasks in a timely manner. The vocational expert based his opinion on a review of the entire claims file. In light of the positive medical opinion from the vocational expert, the Board finds that a TDIU is warranted. ORDER Service connection for sleep apnea, to include as secondary to nasal trauma, is granted. Subject to the law and regulations governing payment of monetary benefits, TDIU is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs