Citation Nr: 20023058 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 09-37 837 DATE: April 2, 2020 ORDER Service connection for a sleep disorder, to include sleep apnea, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 20, 2018 is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The competent and credible evidence demonstrates that the Veteran has not been diagnosed with a sleep disorder that is distinct from the sleep impairment that is already contemplated in his assigned ratings for service-connected posttraumatic stress disorder (PTSD) and anxiety disorder with obsessive-compulsive and somatization disorder. 2. The competent and credible evidence demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Coast Guard from July 1982 to June 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO). In August 2015, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. In August 2017, the Veteran was notified that the Veteran’s Law Judge who conducted the August 2015 hearing was no longer employed at the Board, and he was afforded the opportunity to have another hearing before the Board. In a statement received that same month, the Veteran indicated that he did not want another Board hearing. This case was previously before the Board in November 2014, May 2016, and October 2017. In each instance, it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its October 2017 remand directives, the Board instructed the AOJ to ask the Veteran to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and to schedule the Veteran for a second VA examination to assess the nature and etiology of any sleep problems generally. Both were done. The Board also notes that in November 2018, while the appeal of the TDIU issue was pending, the agency of original jurisdiction (AOJ) granted service connection and a 30 percent rating for right total hip replacement, effective June 20, 2018. This award increased the Veteran’s combined disability rating to 100 percent, effective June 20, 2018. Because the Veteran is in receipt of a combined 100 percent schedular rating from June 20, 2018, and the below award of TDIU is based on a combination of more than one disability, the matter of his entitlement to a TDIU from that date forward is moot. See Bradley v. Peake, 22 Vet. App. 280, 292-94 (2008). 1. Entitlement to service connection for a sleep disorder The Veteran contends that he has a sleep disorder that was incurred in or caused by service. He stated at his August 2015 hearing that he first noticed symptoms of sleep apnea in service, but that he didn’t know what it was. He stated that he would snore a lot, and that he would wake up and would not be breathing. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). 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. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board notes that the Veteran is service connected for PTSD and anxiety disorder with obsessive-compulsive and somatization disorder rated at 70 percent from February 19, 2008, onward. Therefore, in order to award service connection in this case and the Veteran’s claimed sleep disorder to be assigned a separate compensable evaluation in this case, such must manifest in a separate and distinct compensable disability. See 38 C.F.R. § 4.14; Estaban v. Brown, 6 Vet. App. 259, 262 (1994). The key issue before the Board is whether the Veteran has a current sleep disorder, separate and distinct from symptoms associated with an acquired psychiatric disorder, that began during service or is at least as likely as not related to an in-service injury, event or disease. The Board concludes that the Veteran does not have a current diagnosis of a separate and distinct sleep disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). At the outset, the Board notes that Veteran’s service treatment records (STRs) contain clear complaints of sleep problems in service, but in every instance the problems were attributed to the Veteran’s acquired psychiatric disorders. For example, the Veteran complained of extreme restlessness in an August 1990 STR, but this was noted to be due to anxiety. In the same record he reported that he could not concentrate, could not stop pacing, and that he was always thinking about work. A September 1990 STR indicates increasing difficulty in falling asleep because of a preoccupation with perceived problems at work. In another September 1990 STR, the Veteran was again seen for anxiety and reported that one of his symptoms was exhaustion. He reported that he had trouble falling asleep when he was preoccupied and related his symptoms to job stress. The Veteran also reported daytime sedation in service, but October 1990 STRs indicate that the sedation was secondary to psychiatric medications. Turning to post-service treatment records, the Board acknowledges that there has not been complete clarity regarding whether the Veteran has a sleep disorder that is separate and distinct from his acquired psychiatric disorders. In a June 2009 VA treatment record, the Veteran reported that he had trouble sleeping, stating that his nightmares were worsening, that he had fatigue, snoring, and excessive daytime sleepiness. The Veteran underwent a sleep study in July 2009, the results of which diagnosed periodic limb movement disorder, and “probably position dependent obstructive sleep apnea (OSA).” In an August 2009 VA treatment record F. D., M.D., stated that the sleep study did not show OSA but did show snoring and a few apneas. Dr. D. added that the Veteran “probably has sleep disordered breathing when sleeping supine,” and that he has “remarkably poor sleep hygiene.” In June 2010, Dr. D. stated that the Veteran had very disordered sleep habits, fragmentation, poor sleep hygiene and insomnia. While a September 2010 VA treatment record indicates that the Veteran had a diagnosis of “OSA with good response to CPAP,” Dr. D. stated in a December 2010 record that he did not think that the Veteran had rapid eye movement behavior disorder (RBD) and that the Veteran “really does not even meet diagnostic criteria for OSA.” He also advised that the Veteran discontinue use of a CPAP as a CPAP trial had failed. Dr. D. indicated that the reason the CPAP trial had failed was because it made his psychiatric symptoms worse. The Veteran submitted lay statements from his wife in August 2015, and from a fellow service member, C. R., in September 2015. The Veteran’s wife stated that they met in 1994 and married in 1997, and that she had never known him to have a restful night in the almost 21 years they had been together. She stated that the Veteran’s snoring can be very loud and suddenly stop, and that when it stops his breathing also stops. C. R. noted in his September 2015 statement that he shared a room with the Veteran during service from 2002-2005. He indicated that he witnessed several episodes of periods of apneas, loud snoring, and periods of the Veteran not breathing. He stated that the Veteran often had to take naps during the day and sometimes during work hours. The Veteran was afforded a VA examination to assess the nature and etiology of sleep apnea in March 2017. The examiner noted the lay statement of the Veteran’s wife and that a CPAP was attempted in 2010 but that it ultimately failed. She also noted the July 2009 sleep study but concluded that the Veteran did not have a diagnosis of sleep apnea. In support of her conclusion, she cited the December 2010 VA treatment record in which Dr. D. wrote that the Veteran’s sleep study did not show sleep apnea and did not fit the criteria for sleep apnea. In its October 2017 decision, the Board noted the findings of the March 2017 VA examination, but found that a second VA examination was warranted to determine whether the Veteran has a sleep disorder other than sleep apnea, and to determine whether the Veteran’s sleep problem is a distinct disability from his acquired psychiatric disorders. The Veteran was afforded a second VA examination in April 2019. The examiner found that the Veteran continued to meet the diagnostic criteria for PTSD, but that there was no independent diagnosis of insomnia. He reasoned that sleep impairment is a symptom of PTSD and stated that it was a symptom that actively applied to the Veteran’s PTSD diagnosis. He also stated that the Veteran’s disorder did not differ from the disability for which he is currently service connected at 70 percent. He concluded that there was no evidence of any significant increase in symptom severity or of heightened interference in social and occupational functioning relative to the Veteran’s condition at the time of the most recent prior VA examination, which was in September 2009. Finally, the Board notes that VA treatment records also strongly indicate that the Veteran’s sleep problems are due to his acquired psychiatric disorders and to pain stemming from other physical disabilities, rather than to a separate and distinct sleep disorder. A December 2010 record indicated that the Veteran often woke up with panic attacks, and that he felt the CPAP was making his nightmares and PTSD worse. In March 2015, the Veteran reported that his sleep quality was not good due to pain as well as sleep apnea. In April 2017, the Veteran reported difficulty sleeping due to pain, having to go to the bathroom, and bad dreams. In June 2017, he attributed his sleep issues to pain. A January 2018 record indicates the Veteran was not sleeping well due to pain and positioning. A November 2018 record noted that pain disrupted his sleep, and that he still had nightmares at times. The Board finds the March 2017 and April 2019 VA examinations highly probative and affords them great weight. The opinions were based on a review of the Veteran’s record, including his reports, as well as the medical record, and a thorough rationale was provided for the opinion given. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Simply put, the greater weight of the evidence shows the Veteran has never had a sleep problem either presently, or at any time in the past, that is separate and distinct from symptoms associated with and already compensated by his assigned 70 percent evaluation for his service-connected psychiatric disability. As the competent evidence of record fails to show that the Veteran has been diagnosed with a separate and distinct sleep disorder during the appeal period, his claim for service connection for a sleep disorder must be denied. See 38 C.F.R. § 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). In arriving at this conclusion, the Board observes that the Veteran is competent to offer statements with respect to symptoms of sleeping problems, as are his wife and his fellow service member C. R. However, they are not shown to have the requisite medical knowledge to render a diagnosis, or to determine the etiology of the Veteran’s sleep problem. See Jandreau, supra; see also 38 C.F.R. § 3.159(a)(2). The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU prior to June 20, 2018 A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. As an initial matter, the Board notes that the Veteran has met schedular eligibility for TDIU from February 19, 2008, when his combined disability rating was 90 percent, and his rating for PTSD was 70 percent. The Veteran’s combined rating was increased to 100 percent from November 13, 2009 and decreased back to 90 percent from February 1, 2010. See 38 C.F.R. § 4.16 (a). It was increased to 100 percent effective June 20, 2018. The Veteran has thus met schedular eligibility for TDIU since February 19, 2008. Unlike the rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income.” Substantially gainful employment is work that provides income above the poverty level established by the United States Department of Commerce for one person, without benefit of a protected family employment or a sheltered workshop. Id. The Veteran has indicated that he is unemployable as a result of his service-connected disabilities. He stated at a June 2009 VA examination that he did not think the civilian world was compatible with him, and the examiner stated that the Veteran might be a candidate for a TDIU. He testified at his August 2015 hearing that he was not working. A review of the record shows that the Veteran has a high school education. While the record is not entirely clear regarding the Veteran’s complete work history, his July 1982 entrance examination indicates that he worked as a laborer prior to entering service. Military personnel records indicate he worked as a cook, a food service officer, a contracting officer’s technical representative, and a command senior chief while in service. At a July 2008 VA examination the Veteran reported that he worked for the school district for one year following service, but that the work ended in January 2008. Since January 2008, the record indicates that the only work the Veteran has performed is as a self-employed caretaker for his disabled brother, an activity he performs with varying frequency. A July 2009 VA examination indicated that the Veteran was unemployed at that time, and an April 2010 VA treatment record indicated that his functioning was impaired enough at that time that he was unable to care for his brother. A second April 2010 VA examination also indicated that he was unable to care for his brother at that time due to his back and his knee conditions. At his August 2015 hearing, he stated that he was not working, but that he took care of his brother. At an April 2019 VA examination, he reported that he had not been employed since 2006 and that his primary daily activity was helping to take care of his brother. The Veteran has undergone several VA examinations since he filed his application for an increased rating, all of which outline significant limitations that preclude the Veteran’s ability to secure or follow substantially gainful employment. While not providing specific limitations, a VA examiner in June 2009 stated that the Veteran might be a candidate for individual unemployability. A July 2009 VA examiner stated that the Veteran was unemployed partly due to his lumbosacral spine condition. An August 2009 VA examiner opined that his left knee limited him in activities of daily living, noting that he was not able to go up or down stairs, and that he has pain with weight-bearing, standing, walking, and sitting. An April 2010 VA examiner stated the Veteran was unable to bend over to tie his shoes, unable to carry groceries, needed help getting in and out of the shower, and help dressing. The same examiner opined that the Veteran was unable to walk more than ten minutes, to stand more than five minutes, and to sit more than thirty minutes. At another VA examination regarding the Veteran’s lumbar spine in March 2017, an examiner noted that the Veteran had a slow gait and that he always used a cane or walker. He opined that the condition limited his driving, and that because forward bending was limited, his wife assisted him with his shoes and helped him to get into the shower. Another March 2017 VA examiner opined that the Veteran’s migraine headaches impacted his ability to work inasmuch as that when he experiences a migraine attack, he must stop all activities and lay down, and that on some occasions he must lay down and try to sleep for as long as one day. He noted the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every two months. A November 2018 VA examiner opined that the Veteran’s right hip disability caused difficulty with heavy lifting, prolonged standing, walking, jogging, or stair climbing. Finally, the April 2019 VA examiner noted that the Veteran did not do any of the cooking, shopping, or housework, that he was unable to do much around the house. The Veteran is service-connected for all of these disabilities. The Board finds that the evidence of record supports the claim for entitlement to a TDIU. The Board acknowledges that the Veteran has continued to be employed in some capacity as a caretaker for his brother since January 2006. However, the mere fact that he has engaged in that work activity does not automatically bar entitlement to TDIU. In this regard, the Board finds that the Veteran’s employment constitutes sheltered employment. The evidence indicates that the Veteran is not the sole caretaker for his brother, and that at times he is unable to perform the activity at all. Still further, the functional limitations resulting from the Veteran’s myriad service-connected disabilities, as outlined by various VA examiners, clearly indicate that he is not able to perform many, if not most, of the traditional responsibilities of a caretaker. The activity does not require him to leave his home, and the Veteran’s wife is able to assist him as needed. Moreover, the evidence clearly demonstrates that the Veteran would be unable to obtain or maintain substantially gainful occupation in a competitive environment consistent with his education and occupational experience, by reason of his service-connected disabilities. Given the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that TDIU prior to June 20, 2018 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A.P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate 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.