Citation Nr: 1752919 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-09 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased disability rating for sleep apnea in excess of 50 percent. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1997 to June 2011. This appeal is before the Board of Veterans' Appeals (Board) on appeal of a decision issued in March 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The claim is now in the jurisdiction of the Seattle, Washington, RO. FINDINGS OF FACTS 1. The Veteran's sleep apnea requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. 2. For the entire rating period on appeal, the Veteran's sleep apnea did not manifest as chronic respiratory failure with carbon dioxide retention or cor pulmonale, and it did not require a tracheostomy. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for sleep apnea have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.100, Diagnostic Code 6847 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated July 2011. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained. Moreover, the Veteran has been afforded adequate examinations in August 2011 and November 2014. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the examiner performed a clinical evaluation of the Veteran, took into account the Veteran's statements and treatment records, and provided all information required for rating purposes. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of 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.A. § 5107; 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Analysis The Veteran contends that his service-connected sleep apnea condition has worsened, and therefore seeks a higher rating. Sleep apnea syndromes are rated under Diagnostic Code 6847. 38 C.F.R. § 4.97. Pursuant to Diagnostic Code 6847, sleep apnea syndromes (obstructive, central, mixed) are rated noncompensable when asymptomatic, but with documented sleep disorder breathing. A 30 percent disability rating is warranted when there is persistent daytime hyper somnolence. A 50 percent evaluation is to be assigned when the veteran requires the use of a breathing assistance device, such as a continuous airway pressure (CPAP) machine. A 100 percent evaluation is assigned for chronic respiratory failure with carbon dioxide retention or cor pulmonale or for cases where the veteran requires a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The Veteran received a VA sleep apnea examination in November 2014. Per the history in the examination report, the Veteran reported that his wife observed him snoring, and having apneic periods. He was referred to the Harrison Medical Center for a sleep study in May 2011. Following the initial sleep study, the Veteran had another sleep study done in May of 2011 and he was prescribed a continuous positive airway pressure ( CPAP) machine, which has improved his headaches, improved his daytime somnolence, and made his chest pain improved a week of using the CPAP. See May 2017 CAPRI. Upon examination in November 2014, it was noted that the Veteran did not need medication to control the sleep disorder, he requires the use of a CPAP, and there are no other pertinent physical findings, complications, condition, signs and/or symptoms related to his sleep disorder. The sleep study registered a "mild sleep-related breathing disorder with an apnea/hypopnea index of 7.4". It was reported that his sleep apnea does not impact his ability to work. Having reviewed all the relevant evidence of record, both lay and medical, the Board finds that for the relevant period on appeal the Veteran's sleep apnea did not manifest as chronic respiratory failure with carbon dioxide retention or pulmonale, and the Veteran did not require a tracheostomy. The Veteran has not advanced having chronic respiratory failure with carbon dioxide retention or cor pulmonale and/or undergoing a tracheostomy. The report from the November 2014 VA sleep apnea examination reflects that there were no current findings, signs or symptoms attributable to sleep apnea, to include chronic respiratory failure with carbon dioxide retention or pulmonale, and there was no indication the Veteran ever underwent a tracheostomy. Based on the foregoing, the Board notes that an additional examination is not required. For these reasons, the Board finds that for the entire rating period on appeal the criteria for an increased disability rating in excess of 50 percent for sleep apnea have not been met or more nearly approximated. As the preponderance of the evidence is against the claim for an increased rating, the claim for an increased rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6847. ORDER An increased disability rating for sleep apnea in excess of 50 percent is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs