Citation Nr: 1822604 Decision Date: 04/17/18 Archive Date: 04/25/18 DOCKET NO. 14-03 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 60 percent for bronchial asthma. 2. Entitlement to service connection for a neuropsychiatric disorder. 3. Entitlement to service connection for sleep apnea as secondary to bronchial asthma. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected bronchial asthma (TDIU) REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney-at-Law ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from August 1996 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Additional evidence has been associated with the record that has not been considered by the RO. However, in March 2018, the Veteran's representative waived RO consideration of such evidence. FINDINGS OF FACT 1. On March 13, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issue of entitlement to a rating in excess of 60 percent for bronchial asthma is requested. 2. On March 13, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issue of entitlement to service connection for a neuropsychiatric disorder is requested. 3. Resolving all doubt in favor of the Veteran, sleep apnea is proximately due to his service-connected bronchial asthma. 4. As of January 1, 2010, the Veteran's service-connected bronchial asthma has rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran pertaining to the issue of entitlement to a rating in excess of 60 percent for bronchial asthma have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the Veteran pertaining to the issue of entitlement to service connection for a neuropsychiatric disorder have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for a grant of service connection for sleep apnea have been met, as secondary to the service-connected bronchial asthma. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). 4. Effective January 1, 2010, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal of the issues of entitlement to a rating in excess of 60 percent for bronchial asthma and entitlement to service connection for a neuropsychiatric disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. II. Duties to Notify and Assist As the Board's decision to grant entitlement to service connection for sleep apnea and entitlement to a TDIU herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. III. Service Connection for Sleep Apnea The Veteran has asserted that his sleep apnea is caused his service-connected bronchial asthma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In support of his claim, the Veteran submitted a January 2010 private opinion. The examiner found that the Veteran's bronchial asthma had deteriorated and now presented as obstructive sleep apnea that was more probable than not secondary to obesity due to asthma problems. The Veteran was afforded a VA examination in October 2010. The examiner indicated that there was no evidence of sleep apnea in the available records or on this examination. However, in any case, if a sleep study turns out positive in the future, medical literature review did not report any etiological relationship between asthma and sleep apnea. Both are different medical entities with different pathophysiological mechanisms. VA clinical records in December 2010 showed that the Veteran's physician thought his symptoms were consistent with sleep apnea and recommended a sleep study. A subsequent sleep study in May 2011 showed a diagnosis of mild obstructive sleep apnea. The Veteran submitted a February 2017 private opinion, which outlined all of the prior examinations and opinions. The examiner stated that in contrast to the October 2010 VA examiner's findings, the medical literature does show an association between asthma and sleep apnea and cited to several sources. After a thorough review of the in-service and private medical records, medical opinions and layperson statements as well as relevant medical literature, the examiner opined that the Veteran's service-connected asthma more likely than not predisposed the Veteran to the eventual development of sleep apnea. He agreed with the findings of the January 2010 private examiner who described the development of sleep apnea related to asthma. After considering the totality of the evidence, the Board finds that, when resolving the benefit of the doubt in favor of the Veteran, service connection for sleep apnea is warranted. In this regard, the January 2017 private physician clearly attributed the Veteran's sleep apnea to his service-connected bronchial asthma and offered a detailed rationale for such opinion. Although the October 2010 VA examiner found that the Veteran's sleep apnea was not related to his asthma, his rationale was the lack of medical literature. However, in contrast, the January 2017 private examiner cited to numerous sources documenting an association. In light of the January 2017 private opinion and when resolving the benefit of the doubt in favor of the Veteran, service connection is warranted for sleep apnea as secondary to the service-connected bronchial asthma. In reaching this conclusion, the Board finds that the evidence is in at least a state of equipoise. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. TDIU The Veteran has asserted that he has been unable to work due to his bronchial asthma since January 21, 2010, the date he filed a claim for an increased rating for such disorder. In his TDIU application, the Veteran reported that he last worked as a security guard in November 2009 and that he was in the process of claiming Social Security Administration (SSA) benefits. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In a March 2018 statement, the Veteran's representative specifically requested an effective date for TDIU of January 21, 2010. As of January 21, 2010, the Veteran's service-connected for bronchial asthma has been evaluated as 60 percent disabling. As such, the Veteran has one disability rated at 60 percent or more. Thus, the Veteran's service-connected bronchial asthma satisfies the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The Board recognizes that service connection for sleep apnea has been awarded herein, but a rating has not yet been assigned. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) upheld a finding that a Veteran with three service-connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, met the schedular criteria set forth in 38 C.F.R. § 4.16 (a) despite other unrelated service connected disabilities evaluated as noncompensable. Gary v. Brown, 7 Vet. App. at 230 (1994). Accordingly, the Veteran's service-connected bronchial asthma satisfies the schedular criteria for a TDIU, notwithstanding what evaluation is subsequently assigned to his sleep apnea. Id. 38 C.F.R. § 4.16 (a). To find otherwise would lead to the absurd result that a Veteran with more than one service-connected disability is penalized in that he or she is required to have a combined disability rating of 70 percent while a Veteran with a single service-connected disability need only have a 60 percent rating. See Sabonis v. Brown, 6 Vet. App. Vet. App. 426, 429 (1994) (stating that plain meaning of language of a statute must be given effect unless it would lead to absurd result). Therefore, the remaining inquiry is whether such disability renders the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. In this regard, a January 2010 private opinion indicated that the Veteran's asthma limited his activities. He was not able to walk long, lift heavy things and experienced shortness of breath even during periods of rest. The examiner continued that the Veteran's symptoms caused him limitations of daily activities and social functioning. However, a February 2010 VA examiner opined that the Veteran was able to obtain and secure a financially gainful job of a regular type. The examiner observed that the Veteran's symptoms were not consistent with physical signs and test results. Physical examination and tests done do not support the severity of disability suggested by the complaints. In his January 2014 substantive appeal, the Veteran reported that he could not walk a long time, exercise or use excessive force. He also reported having to take a lot of medications and used his therapy machine to treat his asthma. In support of his claim, he submitted a January 2017 statement from his wife. She reported that the Veteran's asthma and sleep apnea interfered with his daily living due to difficulty breathing and sleeping. He cannot walk long distances or perform very hectic tasks. He also could not climb stairs or do any type of physical work. Importantly, the February 2017 private examiner noted that the Veteran had worked as a security guard, but his asthma unfortunately progressed so that he could no longer perform the necessary duties. The examiner noted that the Veteran returned to work for a short period of time in 2010, but that he had essentially been unable to work since November 2009. He discussed all of the medical evidence of record and concluded that the Veteran's frequent asthma flare-ups in conjunction with his excessive daytime sleepiness from his now service-connected sleep apnea left the Veteran unable to secure gainful employment since November 2009. The examiner disagreed with the February 2010 VA examiner as the examiner's conclusion did not seem to take into account the Veteran's severe asthma symptoms. The Board notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Therefore, after reviewing the totality of the evidence, the Board finds that the evidence of record shows that the Veteran is precluded from substantially, gainful employment due to the functional limitations and impairment caused by his service-connected bronchial asthma. The Veteran and his wife have thoroughly described his functional impairment due to his service-connected bronchial asthma and how it affects his ability to work. Further, the February 2017 private examiner clearly determined that due to the Veteran's functional limitations caused by his service-connected bronchial asthma, he would be unable to maintain substantially gainful employment. In sum, when considering the totality of the functional impairment caused by his service-connected bronchial asthma as described by the lay and medical evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, it would seem that the Veteran would be precluded from substantially gainful employment due to his service-connected bronchial asthma. Moreover, the Board finds that evidence shows that the Veteran's functional limitations have been consistent since the date of his claim for increase, January 21, 2010. In conclusion, when resolving all benefit of the doubt in the Veteran's favor, the Board must conclude that the Veteran is unemployable due to his service-connected bronchial asthma and, in turn, entitlement to TDIU is warranted, effective January 21, 2010. See 38 U.S.C.A. § 5107 (b). ORDER The appeal pertaining to the issue of entitlement to a rating in excess of 60 percent for bronchial asthma is dismissed. The appeal pertaining to the issue of entitlement to service connection for a neuropsychiatric disorder is dismissed. Service connection for sleep apnea, as secondary to service-connected bronchial asthma, is granted. A TDIU is granted, effective January 21, 2010, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs