Citation Nr: 1757717	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO. 07-06 543	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1. Entitlement to service connection for sleep apnea.

2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities.


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1983 to June 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville Kentucky.
Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in Baltimore, Maryland.

In December 2015, the Board remanded the Veteran's claims for additional development. His claims have since returned to the Board for further consideration.


FINDINGS OF FACT

1. The Veteran's current sleep apnea did not have its onset in service and is not otherwise due to service. 

2. The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities.


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

As noted above, in December 2015, the Board remanded the claims listed on the title page for additional development. Under the circumstances, the Board finds that there has been substantial compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

II. Service Connection 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge 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); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for sleep apnea. The reasons follow.
 
The Veteran has been diagnosed with sleep apnea, and thus there is evidence of a current disability, which was diagnosed following a sleep study in September 2012. However, the Veteran's claim fails on both the in-service disease or injury and the nexus to service. For example, as to an in-service disease or injury, the service treatment records (STRs) show that the Veteran specifically denied trouble sleeping in 1982, 1991, 1995, 1998, 2002, 2004, 2005 and 2006, which covers a 24-year period and prior to and beyond the Veteran's service. The Veteran's denial of trouble sleeping is evidence that tends to not support a finding that he had sleep apnea in service. The Veteran has alleged that his reported coughing during service was indicative of sleep apnea. There was evidence of complaints of coughing in service, and the Veteran underwent several pulmonary function tests in service, which were normal. Even conceding the coughing during service, this does not equate with a diagnosis of sleep apnea. The Board will address the in-service coughing below, as a medical professional has addressed the allegation that the in-service coughing was indicative of sleep apnea. 
 
As to a nexus to service, when the Veteran was seen in February 2013 in connection with sleep apnea, the VA examiner opined that the documented symptoms in the STRs are not consistent with sleep apnea and stated that there was no diagnosis or sleep study to diagnose sleep apnea in the Veteran's STRs, which further tends to establish that sleep apnea did not have its onset in service. 

The January 2016 VA examiner opined that the Veteran's sleep disability was related to a psychological issue and not to sleep apnea. The January 2016 examiner opined that the Veteran's diagnosis of sleep apnea is less likely as not incurred in or caused by complaints of coughing and trouble breathing during service. The January 2016 examiner reported that there is insufficient evidence in the Veteran's STRs to support that the Veteran suffered from sleep apnea in service. The January 2016 examiner also noted that chronic coughing was noted in service but this symptom alone was not exclusively nocturnal. The January 2016 VA examiner's report also weighs against the Veteran having sleep apnea in service.

The Board accords high probative value to the in-service reports by the Veteran, as he completed these forms, wherein he denied trouble sleeping, contemporaneously with service, which, as noted above, covered a 24-year period. To the extent that the Veteran has implied that sleep apnea is otherwise related to service, his allegation is outweighed by that of the February 2013 and January 2016 examiners, who provided the opinions that sleep apnea was not related to service, which included rationales for their opinions.
 
The Veteran's contentions are outweighed by the probative evidence of record. Although the Veteran states that his sleep apnea is related to a chronic cough in service or reports of shortness of breath in service, the competent and probative medical evidence of record does not support that the Veteran's sleep apnea is caused by or related to these symptoms. The Board notes that the Veteran had submitted a claim for service connection for chronic cough and shortness of breath, which claim was denied in August 2005, and the Veteran did not appeal that issue. 

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a sleep apnea. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).


III. TDIU

A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id.

The question of unemployability or the veteran's ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991).

Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.

The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2017); Van Hoose, 4 Vet. App. 361(1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

As of April 11, 2011, the Veteran's combined evaluation was 80 percent, with fourteen service-connected disabilities. He is now at a combined rating of 90 percent. Thus, the Veteran meets the disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16(a).

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU for service connected disabilities. The reasons follow.

In a September 2016 letter, VA requested the Veteran complete the enclosed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and send it to VA. It told the Veteran that a substantially complete VA Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. It also asked the Veteran to either complete the enclosed VA Form 21-4192, Request for Employment Information, by providing the complete address for his employer(s) and VA would request the Veteran's employment history, or have his employer complete it and send it to VA. In the October 2016 rating decision, the RO informed the Veteran that it needed the VA Form 21-8940 to decide this claim. 

The Veteran has not provided VA with a completed VA Form 21-8940 or a VA Form 21-4192, even after being informed that the VA Form 21-8940 was needed for VA to provide an informed decision regarding the Veteran's TDIU claim. Accordingly, the Veteran's employment and education history is not available for consideration, which provides important facts for VA, including the Board, to determine if the Veteran is prevented from securing or following a substantially gainful occupation.

In the multiple VA examination reports pertaining to the Veteran's service-connected disabilities from July 2015, examiners documented that the Veteran stated that he worked until February 2013. The Veteran reported he stopped working due to the physical requirements of his position and his inability to continue with that level of physical exertion. The examiners found that the Veteran could not engage in strenuous physical activity, such as climbing, jumping, lifting, or moving military equipment.

While these reports demonstrate some workplace limitations, they did not show that the examiner found that the Veteran was prevented from securing or following a substantially gainful occupation.

Remaining VA and private treatment records offer no evidence that would support a finding that the Veteran is unemployable due solely to his service-connected disabilities. The record ultimately reflects that the Veteran is capable of some minor physical and sedentary employment, subject to limitations that are not outside the bounds of those adequately contemplated by schedular criteria.

In light of the foregoing, the Board finds the preponderance of the evidence is against a claim for a TDIU rating. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See Gilbert, 1 Vet. App. 49.



ORDER

Entitlement to service connection for sleep apnea is denied.

Entitlement to a TDIU rating due to service-connected disabilities is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs