Citation Nr: 20021045 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-22 614 DATE: March 24, 2020 ORDER Entitlement to an initial rating of 50 percent, but no higher, for obstructive sleep apnea (OSA), is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s OSA has required the use of a continuous airway pressure (CPAP) machine. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no higher, is warranted for OSA. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Code (DC) 6847 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from October 1967 to October 1970. This matter is on appeal from a December 2016 rating decision. In May 2019, this matter was remanded by the Board for further development and is now ready for adjudication. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends his service-connected sleep apnea is more severe than his rating indicates. Preliminarily, in a December 2016 rating decision, the RO granted service connection for OSA secondary to service-connected diabetes and posttraumatic stress disorder, rated as 20 percent disabling, effective January 20, 2010, pursuant to DC 6847. The RO explained that a 50 percent rating was assigned a 50 percent rating based on the required use of a CPAP machine. The RO explained that an October 2016 VA examiner opined that his OSA was at least as likely as not aggravated beyond natural progression by his service-connected diabetes and PTSD which supported a grant of service connection on the basis of aggravation of a nonservice-connected disability by a service-connected disability. The RO stated that although the examiner was unable to determine the baseline level of severity, the assigned evaluations were determined based on the review of available VA treatment records. In this regard, the Board is cognizant that under the aggravation provisions of 38 C.F.R. § 3.310 (b), VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Rating Schedule and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. Significantly, however, the Board finds that the RO’s determination as to aggravation was improper. Specifically, the October 2016 VA examiner was unable to determine a baseline level of severity of OSA based upon medical evidence available prior to aggravation of the earliest medical evidence following aggravation by the Veteran’s service-connected disabilities. Both the RO and the Board are prohibited from exercising their own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the RO’s determination as to aggravation was improper and not based upon any conclusions of a medical expert. The Board therefore finds that the Veteran’s OSA may be properly rated as 50 percent under DC 6847 because the disability has required the of a CPAP machine during the entire period on appeal. Regarding whether the Veteran is entitled to an initial rating higher than 50 percent for OSA, the Veteran’s OSA is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847. Under this Code, a 30 percent rating is for persistence daytime hypersomnolence. A 50 percent rating is assigned when the sleep apnea requires the use of a breathing assistance device such as CPAP machine. A 100 percent rating is assigned for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. Turning to the merits of the claim, VA treatment records show that in July 2009 the Veteran was on a CPAP machine and slept with a mask every night. In September 2010, he was doing well sleeping with a mask on every night. On June 2012 VA sleep apnea Disability Benefits Questionnaire (DBQ) examination, the Veteran was diagnosed with obstructive sleep apnea since May 2007. It required the use of a breathing assistance device such as CPAP machine. It did not impact his ability to work. On June 2015 VA sleep apnea DBQ examination, the Veteran presented with a history of waking up in the middle of the night gasping for air and was using a CPAP machine. The Veteran stated that he had a sleep study in May 2007 which showed severe obstructive sleep apnea which the examiner opined did not impact his ability to work. In a December 2017 notice of disagreement, the Veteran’s representative contended that he is entitled to a rating of percent or greater for his sleep apnea based on necessitation of a CPAP machine. VA treatment records dated in January 2019 and September 2019 show that the Veteran’s sleep apnea still required the use of a CPAP mask. Pursuant to the Board’s May 2019 remand, on December 2019 VA sleep apnea DBQ examination, the Veteran presented with symptoms of persistent daytime hypersomnolence, snoring, difficulty sleeping, awakening gasping breath, and episodes of stopping breathing. Obstructive sleep apnea was diagnosed which the examiner opined impacted his ability to work due to fatigue which reduced maximal work productivity. Based on the evidence of record, the Board finds that an initial rating of 50 percent, but no higher, for OSA is warranted. However, since there is no evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy, a maximum rating of 100 percent is not warranted. See, 38 C.F.R. § 4.7. In this case, the Veteran is competent to report complaints such as difficulty breathing, as this observation comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously (it is important for the Veteran to understand that these symptoms are the basis for the initial 50% rating assigned herein). He is not, however, competent to identify a specific level of disability of his OSA according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s OSA has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.