Citation Nr: A20009484 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 190802-25340 DATE: May 28, 2020 ORDER Entitlement to special monthly compensation based on aid and attendance is denied. Entitlement to a total disability based on individual unemployability (TDIU) is granted. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Veteran does not have a 100 percent rating for a single disability. 2. The evidence of record establishes that the Veteran’s service-connected acquired psychiatric disorders render him unable to secure and follow a substantially gainful occupation. 3. The preponderance of the evidence of record is against finding that the Veteran has had sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation (SMC) at the housebound rate have not been met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.102, 3.350. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to June 1981. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a May 2019 rating decision. The Veteran timely appealed this rating decision to the Board and requested the evidence docket, which allowed him to submit additional evidence for 90 days following the submission of his appeal. Any evidence submitted by the Veteran after the 90 days, or evidence generated by the VA after the rating decision, has not been considered in this decision. 1. Entitlement to SMC based on aid and attendance The Veteran alleges that due to his service-connected disabilities, he is in need of regular aid and attendance. SMC at the housebound rate is payable when a veteran has a single service-connected disability rated 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i)(1). The Veteran is currently rated at 70 percent for an acquired psychiatric disorder, 10 percent for bilateral tinnitus, and 0 percent for bilateral hearing loss. Thus, he does not have a single service-connected disability rated at 100 percent. As the Veteran does not meet the schedular criteria, SMC based on aid and attendance must be denied. 2. Entitlement to a TDIU TDIU may be assigned where the veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of their service-connected disabilities. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held the phrase “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components; one economic and the other non-economic. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). The economic component contemplates an occupation earning more than marginal income, outside of a protected environment, as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component contemplates the veteran’s ability to follow and secure employment. In this respect, due consideration must be given to their history, education, skill and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g. sedentary, light, medium, heavy or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. Given sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (11th ed.) (2003). In this context, appropriate factors for consideration are the veteran’s employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. §§ 3.341, 4.16. However, a veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. As a preliminary matter, for TDIU consideration the veteran must meet the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a), (b). If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16 (a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. First, the Veteran meets the schedular criteria; his service-connected acquired psychiatric disorders are rated at 70 percent disabling as of May 4, 2017. Second, the evidence shows that the Veteran is unemployed due to his mental disabilities. The treatment records show the Veteran began experiencing cognitive delay, including memory problems and getting lost while driving in approximately 2010. In submitted statements, the Veteran explained his inability to remember work tasks he had been completing for years, and that his anger and aggression led to problems with co-workers. His wife submitted a statement in July 2019 describing the Veteran’s constant forgetfulness and inability to complete basic tasks. Upon being diagnosed with neurodegenerative disease process (later diagnosed as dementia secondary to PTSD), the Veteran was advised by his physician to retire. He retired in April 2015. In a private medical report submitted in September 2019, Dr. C explained that the Veteran had trouble driving, completing basic tasks, and had difficulty articulating words. He had gotten lost on his way to work and became incapable of attending to his job responsibilities. Dr. C concluded that there are no employers willing to tolerate the behaviors, actions, and symptoms manifested by the Veteran. According to Dr. C, the Veteran is incapable of functioning in the most basic aspects of society, cannot even attend to his own basic needs, and is completely disabled from any employment since at least 2015, if not prior. In Dr. C’s opinion, the Veteran would likely be institutionalized if it were not for his caretakers. The submitted lay statements are highly competent, credible, and probative evidence as they relate to matters personally observed and experienced and are consistent with the entirety of the record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness’ personal knowledge); Layno v. Brown, 6 Vet. App. 465 (1994); Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency, with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)).  The Board also relies heavily on Dr. C’s opinion. As the examiner reviewed the claims file, evaluated the Veteran, gave a detailed report and supported his conclusions with adequate rationale, the Board finds it probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. At 295 (2008). Further, there is no contrary medical opinion. In considering all the evidence, the Board finds that the weight of the evidence is in favor of the Veteran; thus, entitlement to a TDIU is granted. 3. Entitlement to service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. The available evidence does not show a diagnosis for sleep apnea. Castle Point VAMC records list obstructive sleep disorder under the Veteran’s list of diagnoses; however, not only is this not a diagnosis of sleep apnea, there are no records explaining the diagnosis. While the Veteran continuously complains of sleep impairment due to his PTSD, he repeatedly denies symptoms of sleep apnea. As there is no evidence of a diagnosis, the Veteran’s claim must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.