Citation Nr: 20002828 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 15-24 211 DATE: January 13, 2020 ORDER Entitlement to secondary service connection for sleep apnea is denied. Entitlement to an initial rating in excess of 10 percent for left vagus nerve dysfunction is denied. Entitlement to an initial rating in excess of 10 percent for right vagus nerve dysfunction is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea was not proximately due to or aggravated by a service-connected disability. 2. Throughout the appeal period, the Veteran’s left vagus nerve dysfunction was manifested by moderate incomplete paralysis of the tenth cranial nerve. 3. Throughout the appeal period, the Veteran’s right vagus nerve dysfunction was manifested by moderate incomplete paralysis of the tenth cranial nerve. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial rating in excess of 10 percent for left vagus nerve dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.124a, Diagnostic Code 8210. 3. The criteria for an initial rating in excess of 10 percent for right vagus nerve dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.124a, Diagnostic Code 8210. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1966 to September 1968, to include service in the Republic of Vietnam from September 1967 to September 1968. He died in September 2018. The appellant is the Veteran’s surviving spouse and has been substituted as the claimant for the purposes of processing the above-listed claims to completion. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for sleep apnea is denied. Prior to his death, the Veteran related his sleep apnea to his service-connected disabilities. See July 2014 Notice of Disagreement (relating sleep apnea to diabetes, neuropathy, and mobility problems from disabilities related to herbicide agent exposure). He did not assert, and the evidence does not otherwise support, service connection on a direct basis. Accordingly, that theory of entitlement will not be addressed. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The evidence of record reflects a diagnosis of obstructive sleep apnea. See, e.g., December 2010 VA treatment record. The Veteran was also service-connected for diabetes mellitus type 2, hypertension, bilateral peripheral neuropathy, and bilateral vagus nerve dysfunction. Thus, the crux of this case rests on whether there is an etiological relationship between the Veteran’s sleep apnea and his service-connected disabilities. There is only one competent opinion of record addressing the etiology of the Veteran’s sleep apnea, and it is against the claim. Specifically, in April 2015, a VA examiner opined that the Veteran’s sleep apnea was less likely as not (less than 50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected diabetes mellitus type 2, hypertension, bilateral peripheral neuropathy, and/or bilateral vagus nerve dysfunction. The examiner reasoned that the there was no physiological basis upon which to assert that the service-connected disabilities caused sleep apnea, as the most common cause was excess weight and obesity, and was the most likely cause in the Veteran’s case due to high food intake. In addition, the examiner opined that the sleep apnea was less likely as not aggravated by his service-connected disabilities, reasoning that the sleep apnea remained stable with a natural progression of the condition. Notably, there is no competent medical opinion in support of the Veteran’s claim. To the extent the Veteran previously related his sleep apnea to his service-connected disabilities, he was not competent to do so, as he did not have the requisite medical expertise to opine as to the etiology of a sleep disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial rating in excess of 10 percent for left vagus nerve dysfunction is denied. 3. Entitlement to an initial rating in excess of 10 percent for right vagus nerve dysfunction is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran was in receipt of initial 10 percent ratings for right and left vagus nerve dysfunction under 38 C.F.R. § 4.124a, Diagnostic Code 8210. Under Diagnostic Code 8210, paralysis of the tenth cranial (vagus) nerve is rated 50 percent if complete, 30 percent if incomplete but severe, and 10 percent if incomplete but moderate. A corresponding note indicates that evaluation is dependent upon the extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach and heart. 38 C.F.R. § 4.124a, Diagnostic Code 8210. There is no other potentially applicable diagnostic code in this case. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). The appeal period is from October 24, 2008, the effective date of service connection. After a review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against assigning initial ratings in excess of 10 percent for the Veteran’s right and left vagus nerve dysfunction. Instead, the evidence of record shows that the Veteran’s symptoms included dizziness with associated weakness and fatigue when walking and upon standing up from a sitting position, occurring randomly, ranging from three to four times per day for 30 seconds, and up to eight episodes of dizziness per day lasting for up to an hour. Cf. November 2008 and May 2010 VA diabetes examinations; July 2013 VA ear conditions examination; December 2013 cranial nerve conditions examination; see also August 2009 lay statements from Appellant and B.B. Critically, physical examination of the Veteran was otherwise normal, with no evidence of any associated sensory or motor loss to organs of voice, respiration, pharynx, stomach or heart. See December 2013 cranial nerve conditions examination (noting normal cranial muscle strength and sensory examinations). In addition, December 2013 VA cranial nerve conditions examiner specifically determined that the Veteran’s cranial nerve disabilities were incomplete and moderate in severity. Thus, because the preponderance of the evidence is against a higher rating, the appeal for an initial rating in excess of 10 percent for right and left vagus nerve dysfunction must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.