Citation Nr: 18153074 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-04 874 DATE: November 27, 2018 ORDER The claim for entitlement to service connection for obstructive sleep apnea is granted. The claim for entitlement to a total disability rating based on individual unemployability is granted. The claim for entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. The claim for entitlement to an earlier effective date for the grant of service connection for hearing loss is dismissed. The claim for entitlement to an earlier effective date for the grant of service connection for tinnitus is dismissed. FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether the Veteran’s obstructive sleep apnea is related to service. 2. The effects of the Veteran’s service-connected PTSD renders him unemployable. 3. At the March 12, 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for the claim for entitlement to earlier effective dates for the grant of service connection for PTSD, hearing loss, and tinnitus. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2018) 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). 3. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issue of entitlement to an earlier effective date for the grant of service connection for PTSD. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 § C.F.R. 20.204 (2018). 4. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issue of entitlement to an earlier effective date for the grant of service connection for hearing loss. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 § C.F.R. 20.204 (2018). 5. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issue of entitlement to an earlier effective date for the grant of tinnitus. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 § C.F.R. 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ). 1. The claim for entitlement to service connection for obstructive sleep apnea is granted. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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, 1167 (Fed. Cir. 2004). The Veteran seeks service connection for sleep apnea, to include as due to service-connected PTSD. The record demonstrates that the Veteran a current diagnosis of obstructive sleep apnea. See October 2012 VA Examination Report. The dispositive issue on appeal concerns whether there is a causal relationship between the Veteran’s current obstructive sleep apnea disability and either service or a service-connected disability. The record includes opinions for and against the claim. In October 2012, the Veteran underwent VA examination. The VA examiner indicated there is not a relationship between the Veteran’s PTSD and sleep apnea, and that they are separate conditions. In support of this opinion, the examiner reasoned that sleep apnea was present for the previous five years, while PTSD symptoms were present for the previous 25 years. In January 2018, private professional Dr. Covin (Ed.D., LPC, LMFT) opined that the Veteran’s sleep apnea is secondary to the Veteran’s PTSD and at least as likely as not aggravated by the Veteran’s PTSD. In support of this opinion, Dr. Covin cited a review of medical and behavioral health literature, professional education, training/experience, and knowledge of the Veteran’s medical conditions. Dr. Covin also provided a list of medical literature concerning the relationship between sleep disturbances and stress/anxiety disorders. Subsequently, at the March 2018 Board hearing, Dr. Covin provided testimony affirming his January 2018 opinions. The Veteran provided testimony concerning the nature of his sleep apnea symptoms, noting that he wakes up frequently, gasps for air, and has bad dreams. In May 2018, the Board sought additional opinion from a Veterans Health Administration (VHA) somnologist. In July 2018, this examiner opined that it is at least as likely as not that the Veteran’s obstructive sleep apnea was present during service. In support of this opinion, the examiner reasoned that sleep apnea tends to be present for many years or decades prior to diagnosis. The opinions of record are rendered by equally qualified professionals with no compelling reason to discount the basis for either opinion. In sum, based on the totality of the evidence and affording the Veteran the benefit of all reasonable doubt, the Board finds that the Veteran’s current obstructive sleep apnea disability is causally related to service. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). As such, he is entitled to a grant of service connection for obstructive sleep apnea. 2. The claim for entitlement to TDIU is granted. For VA purposes, total disability exists when there is any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. As a preliminary matter, the Board finds that during the appeal period, the Veteran did meet the schedular criteria for TDIU given the 70 percent rating assigned for his PTSD. The record reflects that the Veteran’s work history consists mainly of employment as an aircraft mechanic. He last worked in May 2013 as a production control supervisor at Fort Rucker, Alabama. He testified that he left this work due to symptoms of his service-connected PTSD. Entitlement to a total rating must be based solely on the impact of a Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is whether a Veteran is capable of performing the physical and mental acts required by employment and not whether a Veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Turning to the facts of this case, the Veteran was awarded Social Security disability benefits in January 2015. The agency found that the Veteran’s impairments, including PTSD, precluded him from working since May 2013. Following a behavioral evaluation conducted from January 2018 to March 2018, the Veteran’s licensed professional counselor opined that the Veteran has been unemployable since at least May 2013 due to service-connected PTSD and related factors. The Board is of the opinion that the Veteran’s PTSD has rendered him unemployable. As noted in Moore, the Board must address the TDIU question in a practical matter. Notably, the Veteran’s employment history consists of aircraft mechanic work which required a certain level of concentration and focus to complete tasks, as well as interaction with coworkers. Based on the medical evidence of record, the Veteran’s symptoms include memory difficulties, poor concentration, hallucinations, irritability and avoidant behavior. Such symptoms, when viewed in light of his work history, render him unemployable. It would be unreasonable to expect the Veteran to work in an environment in which he would be expected to have daily contact with coworkers and exude a high level of focus in order to satisfy his job requirements. Considering the entire record in light of the above, along with the effects of the Veteran’s service-connected PTSD, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports an award of TDIU. The claim is granted. 3. The claims for entitlement to earlier effective date for the grant of service connection for PTSD, hearing loss, and tinnitus are dismissed. Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“Although Mr. DeLisio ‘thought’ that the Board member had identified the issues to be discussed, the transcript reflects neither an explicit discussion of withdrawal nor any indication that Mr. DeLisio understood that he might be withdrawing claims for benefits for any disabilities not discussed.”). During the March 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal for issue of entitlement to earlier effective dates for the grant of service connection for PTSD, hearing loss, and tinnitus. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to the appeal. See Hearing Transcript at [2]. The Veteran’s full understanding of the consequences are shown based on his acknowledgment that he did not file service connection claims prior to the current effective date for the grant of service connection for PTSD, hearing loss, and tinnitus; and that he understood the currently-assigned effective date is correct. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). (continued on next page) The Board finds that the Veteran’s statement qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204 as the transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). In light of the Veteran’s withdrawal of the appeal of the claims, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review these claims which are, therefore, dismissed. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Rasool