Citation Nr: 1635411 Decision Date: 09/09/16 Archive Date: 09/20/16 DOCKET NO. 05-06 381A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities. 2. Entitlement to an effective date prior to May 23, 2006, for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and an October 2011 rating decision of the VA Appeals Management Center (AMC). The March 2007 decision denied service connection for sleep apnea, and the October 2011 decision awarded TDIU as of May 23, 2006. These matters were last before the Board in September 2014, when they were remanded for further development. Several other matters were previously before the Board, as well as the United States Court of Appeals for Veterans Claims (Court). These issues are no longer on appeal. While the Veteran testified at a September 2005 hearing before a Veterans Law Judge (VLJ) for several of the issues previously on appeal, she did not request a hearing in connection with the current claims on appeal. FINDINGS OF FACT 1. The Veteran's sleep apnea was not manifested in service and is not shown to be related to her service, or to have been caused or aggravated by her service-connected disabilities. 2. The first communication from the Veteran to VA that could be interpreted as an intent to file a claim that could serve as a basis for a TDIU was received on May 23, 2006. 3. The criteria for a TDIU are not met prior to May 23, 2006; factors warranting a referral for TDIU on an extraschedular basis prior to May 23, 2006 are not present. CONCLUSIONS OF LAW 1. Service connection for sleep apnea is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 2. An effective date prior to May 23, 2006, is not warranted for the award of a TDIU. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The notice requirements have been met with regard to the claim for service connection for sleep apnea. July 2006 and August 2006 letters notified the Veteran of the information needed to substantiate and complete her claim for service connection, to include notice of the information that she was responsible for providing and of the evidence that VA would attempt to obtain. She was also provided notice as to how VA assigns disability ratings and effective dates. As the RO issued these notification letters prior to the adjudication of the issue, the notice was timely. With regard to the claim for an earlier effective date for TDIU, as the rating decision on appeal granted TDIU and assigned an effective date for the award, statutory notice had served its purpose, and additional notice is not required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An August 2013 statement of the case also provided notice on the "downstream" issue of entitlement to an earlier effective date for the award of TDIU and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). Regarding the duty to assist, the Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration (SSA) records have been secured. The Veteran has not identified any additional records that could be used to support her claims. Notably, determinations regarding effective dates of awards are based essentially on what is already in the record and when it was received, and generally further development of the record is not necessary. The Veteran was provided several VA examinations in connection with her claim for service connection for sleep apnea. The Board finds the examination reports contains adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. The Board finds that the March 2016 VA examination substantially complied with the remand request. Stegall v. West, 11 Vet. App. 268 (1998). No additional pertinent evidence has been identified by the Veteran as relevant to the issues adjudicated herein. The Board is satisfied that evidentiary development is complete; VA's duties to notify and assist are met. The Veteran is not prejudiced by the process in this matter. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Service Connection for Sleep Apnea Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disability. 38 C.F.R. § 3.310. In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2015). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran's medical records show that she has diagnosed sleep apnea. A current disability is therefore established. To establish service connection, the evidence must still show that the disability is related to service, or any incident of service. The Veteran's service records are silent for complaints of sleep apnea or sleep difficulties. On May 2012 VA examination, the examiner noted the Veteran was diagnosed with obstructive sleep apnea in 2004, she was a smoker, and she had a high body mass index (BMI). The Veteran reported she was on methadone at the time of the diagnosis, and that she stopped taking it due to sleep apnea. She further reported that methadone caused her obstructive sleep apnea. The examiner noted the Veteran had a continuous positive airway pressure (CPAP) machine, but that she was noncompliant in using it. The Veteran reported she last used the mask two weeks prior and that it did not fit properly. The examiner opined that the Veteran's current diagnosed sleep apnea was less likely than not caused or aggravated by medications taken for service-connected disabilities or otherwise related to service or a service-connected disability, nor was it at least as likely as not aggravated beyond its natural progression by service-connected conditions. The examiner's rationale was that the Veteran's tobacco use and obesity were major factors contributing to obstructive sleep apnea, and that sedating medications or any medications used to treat the Veteran's service-connected disabilities were not risk factors according to reliable medical literature. The examiner did not provide an opinion as to direct service connection. On March 2016 VA examination, the examiner noted sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran had obstructive sleep apnea and central sleep apnea, and that the largest risk for obstructive sleep apnea was obesity. The examiner reiterated that the Veteran was on methadone at her initial polysomnogram diagnosing sleep apnea in December 2004, and that the sleep study specialist at the time opined that methadone was a risk for central sleep apnea. However, the Veteran was not taking methadone at the time of her second sleep study in July 2005, and she affirmed that she was not taking any narcotics at the time. At that time, she still had sleep apnea but was responding well to the CPAP. The examiner noted there was no known pathophysiologic connection between central or obstructive sleep apnea and the Veteran's service-connected generalized anxiety disorder with major depressive disorder, left wrist carpal tunnel syndrome, right wrist reflex sympathetic dystrophy pain syndrome, or right ear tympanic membrane scarring. The examiner further noted that the Veteran still had sleep apnea even without taking narcotics, and that her major risk factors for sleep apnea were her obesity, smoking, and postmenopausal female status. Therefore, the examiner noted there was no connection between her service-connected conditions and her sleep apnea, on a direct, secondary, or aggravated basis. The Board finds that the evidence of record does not support a finding of service connection for sleep apnea. The Board finds the VA examiners' opinions to be the most probative evidence of record regarding the relationship between the Veteran's current sleep apnea and service. The examiners expressed familiarity with the record and provided clear explanations of rationales. The examiners outlined the Veteran's medical history and found it less likely than not that the Veteran's sleep apnea was related to service, to include her service-connected disabilities. The opinions are fully articulated with clear conclusions based on accurate factual foundation and supported by sound reasoning. The Board finds no reason to question the providers' expertise or the rationales given. The Board has also considered the statements from the Veteran attributing her sleep apnea to service or to service-connected disabilities. However, the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to provide a diagnosis or a competent opinion as to medical causation. The question of causation involves a complex medical question, and the Veteran does not have the medical expertise to provide such an opinion. Therefore, she is not competent to provide an opinion as to the etiology of any current sleep apnea. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for sleep apnea. Accordingly, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date for TDIU The Veteran argues that she is entitled to an effective date prior to May 23, 2006, for the award of TDIU. She contends that the correct effective date is July 28, 1999, as this is when the Veteran is last shown to have held full-time employment. See October 2012 Notice of Disagreement. Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After review of the record, the Board finds that the claim for an earlier effective date for the award of TDIU must be denied. The Veteran's application for TDIU was first received on May 23, 2006. Prior to that date, she was service connected for left wrist carpal tunnel syndrome, evaluated as 10 percent disabling; right wrist reflex sympathetic dystrophy syndrome, evaluated as 10 percent disabling; and right ear tympanic membrane scarring, evaluated as 0 percent disabling. Thus, she had a combined disability rating of 20 percent, and the minimum schedular criteria for TDIU were not met prior to May 23, 2006. 38 C.F.R. § 4.16(a). As of May 23, 2006, the date the Veteran's claim for TDIU was received, her service-connected disabilities also included generalized anxiety disorder with major depressive disorder, which was evaluated as 70 percent disabling. Thus, she had a combined disability of 80 percent at that point, and met the schedular criteria for TDIU. Id. The grant of service connection for generalized anxiety disorder with major depressive disorder, effective as of the same date of May 23, 2006, the date the claim for service connection was received, was also the basis for the award of TDIU. Specifically, a VA psychiatric examiner opined that the Veteran's generalized anxiety disorder with major depressive disorder significantly impacted her employability. Given the foregoing, the proper effective date for TDIU is the date of receipt of the claim for service connection for generalized anxiety disorder with major depressive disorder. See 38 U.S.C.A. §§ 5107(b), 5110(a),(b); 38 C.F.R. § 3.400. Therefore, the assignment of an effective date of May 23, 2006 for an award of TDIU is correct, and there is no legal basis upon which to award an effective date prior to this date. See 38 C.F.R. § 3.400 (b)(2); Ross v. Peake, 21 Vet. App. 528, 534 (2008) (holding that the effective date for TDIU cannot be earlier than the date of claim for the service-connected disability that established entitlement to TDIU). The Board has considered whether the evidence supports an earlier effective date for a TDIU rating on an extraschedular basis. See 38 C.F.R. § 4.16 (b). However, prior to May 23, 2006, there is no claim upon which a TDIU could have been based, and no evidence indicating that the Veteran's service-connected disabilities - as in effect prior to May 23, 2006 - rendered her unemployable. The Board therefore finds that there is no basis to refer this case for referral for consideration of an extraschedular rating prior to May 23, 2006. 38 C.F.R. § 4.16(b). ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. Entitlement to an effective date prior to May 23, 2006, for the award of a TDIU due to service-connected disabilities, is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs