Citation Nr: 20004102 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-06 166A DATE: January 16, 2020 ORDER A rating in excess of 50 percent for obstructive sleep apnea is denied. FINDING OF FACT The Veteran’s sleep apnea does not present with chronic respiratory failure with carbon dioxide retention or cor pulmonale or require a tracheostomy. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1984 to November 1986. The Board notes that during the course of the appeal for an increased rating for sleep apnea, the Veteran asserted entitlement to compensation for total disability based on individual unemployability (TDIU), including entitlement prior to the date assigned by the Regional Office. A February 2019 rating decision granted compensation for TDIU effective May 4, 2009. The record shows the Veteran’s sleep apnea claim began May 4, 2009. As the Veteran has been awarded TDIU compensation effective May 4, 2009, the issue of entitlement to TDIU prior to May 4, 2009 cannot be inferred as part of the Veteran’s appeal for an increased rating for sleep apnea and therefore, is not before the Board on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. A rating in excess of 50 percent for obstructive sleep apnea The Veteran asserts he should receive a rating higher than 50 percent for his sleep apnea. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s obstructive sleep apnea has been rated under Diagnostic Code 6847 for sleep apnea syndromes. Under the Diagnostic Code, a 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine, and a 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. 38 C.F.R. § 4.97, DC 6847. The Veteran has been awarded a 50 percent rating for his sleep apnea throughout the appeal period. Based on the evidence, the Board finds the Veteran’s sleep apnea does not meet the criteria for a rating in excess of 50 percent. See 38 C.F.R. § 4.97, DC 6847. The Veteran’s sleep apnea requires use of a CPAP machine, but the evidence does not show chronic respiratory failure with carbon dioxide retention, cor pulmonale or requiring a tracheostomy. The July 2017 examiner recorded the Veteran’s use of a CPAP machine and symptoms of persistent daytime hypersomnolence but found no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or required tracheostomy. The examiner found no other signs, symptoms, or physical findings related to sleep apnea. Similarly, VA and private treatment records do not show respiratory failure, cor pulmonale, or tracheostomy. The Veteran has not reported receiving such prognoses for his sleep apnea. (Continued on the next page)   Without evidence of chronic respiratory failure, cor pulmonale, or required tracheostomy, a rating in excess of 50 percent cannot be awarded for the Veteran’s sleep apnea. See 38 C.F.R. § 4.97, DC 6847. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise, and an increased rating for sleep apnea is not warranted at this time. See 38 U.S.C. § 5107(a). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong, 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.