Citation Nr: 21002867 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-56 162 DATE: January 19, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. An increased rating in excess of 40 percent for the service-connected status post radical cystoprostatectomy with neobladder diversion and residual scars is denied. FINDINGS OF FACT 1. The Veteran’s OSA did not have its onset in service, and is not otherwise causally related to service, to include service-connected status post cystoprostatectomy. 2. For the period on appeal, the Veteran’s service-connected status post radical cystoprostatectomy with neobladder diversion and residual scars did not require use of an appliance or wearing absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an increased rating in excess of 40 percent for the service-connected status post radical cystoprostatectomy with neobladder diversion and residual scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1-4.14, 4.115a, 4.115b, Diagnostic Codes (DCs) 7516-7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1982 to December 1986. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a July 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for OSA and continued the 40 percent evaluation for the service-connected status post radical cystoprostatectomy with bladder diversion and residual scars. The Veteran’s Notice of Disagreement (NOD) was received in January 2016. The Statement of the Case was issued in September 2016 and the Veteran’s VA Form 9, substantive appeal to the Board was received in November 2016. In January 2020, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. The transcript is of record. In February 2020, the Board remanded the claims for further development and adjudication. Service Connection 1. Entitlement to service connection for OSA. The Veteran seeks service connection for OSA. At the January 2020 hearing, he testified that his OSA is related to his service-connected status post cystoprostatectomy. Specifically, the Veteran testified that as a result of his cystoprostatectomy, he has three scars, with one large on in the middle of his abdomen. He also testified that he has weeping in his abdominal wall. His contentions are that as a result of this scarring and weeping, the Veteran’s abdomen causes an obstruction of his diaphragm. The Veteran also contended that he was told that his OSA is caused by him being around explosions and being confined to a space while firing ammunition in service. Essentially, the Veteran contended that this exposure inhibited his ability to intake or release oxygen. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran’s service treatment records (STRs) are silent for any complaints, treatments, or diagnosis for OSA. A December 2014 VA treatment note indicates that the Veteran is very obese, has daytime sleepiness and nighttime shortness of breath, and likely has OSA. It was noted that the Veteran was high risk for OSA and was referred to the sleep clinic. A February 2015 VA sleep study indicates that the Veteran was diagnosed with severe OSA. The addendum to the February 2015 VA sleep study indicates that the Veteran’s OSA risk factors include witnessed apneas, elevated body mass index, reported snoring and daytime sleepiness. A September 2015 VA treatment note indicates that the Veteran was diagnosed with OSA in February 2015 and still complaints of excessive daytime sleepiness. The note indicates that the Veteran’s daytime sleepiness is likely related to insufficient sleep. A June 2016 VA treatment note indicates that the Veteran was recently diagnosed with OSA by the sleep clinic and that he believes that his OSA was a result of his prior chemotherapy/radiation received during his bladder cancer treatments. A July 2016 VA treatment note indicates that the Veteran reported left side abdominal pain and that he believes his prior hernia repair may be causing the pain. It was noted that no red flag signs or symptoms suggested incarcerated or strangulated hernia. The Veteran’s examination was unremarkable. An ultrasound indicated no definite hernia of the abdominal wall. It was noted that the examination was limited by the Veteran’s morbid obesity. An October 2016 VA examination report for hernias indicates that the Veteran had healed postoperative ventral hernia repair and healed postoperative wounds with weakening of abdominal wall. In September 2017, the VA obtained a medical opinion with respect to the Veteran’s claim. The VA examiner reviewed the Veteran’s records and concluded that the Veteran’s OSA was less likely than not a result of his service-connected status post radical cystoprostatectomy. As noted in the February 2020 Board remand, the September 2017 VA medical opinion is not afforded probative value as the Veteran was not examined in person and his contentions regarding the causes of his OSA were not addressed. A June 2018 VA treatment note indicates that the OSA is chronic and stable. It was noted that the Veteran was on an APAP machine with good results. In March 2020, the Veteran underwent a VA examination for his claim. The Veteran reported having interrupted sleep with snoring after his 2004 bladder surgery. He indicated that he did not undergo a sleep study until 2015. His 2015 OSA diagnosis was confirmed. The VA examiner reviewed the Veteran’s records and concluded that it is less likely than not that the Veteran’s OSA is related to service, to include exposure to firing ammunition in a confined space and secondary to his service-connected status post radical cystoprostatectomy with neobladder diversion and residual scars. The VA examiner indicated that although these issues may cause anxiety with insomnia, they do bit cause OSA, which is associated in most cases with obesity and improves with weight reduction. The VA examiner also indicated that the Veteran’s abdominal scar is not painful or restrictive and that the Veteran did not have current abdominal wall weeping. With respect to the Veteran’s urinary incontinence, the VA examiner indicated that it is less likely than not that his OSA is caused by or aggravated by it, as the Veteran’s incontinence issues resolved but insomnia has not. Based on the review of the entire record, the preponderance of the evidence supports the finding that the Veteran’s OSA did not have its onset in service, and is not otherwise causally related to the Veteran’s service, to include his claimed in-service exposure to firing ammunition and his service-connected status post cystoprostatectomy. The Veteran’s OSA did not have its onset in service. The Veteran’s STRs and VA treatment records indicate that the Veteran’s OSA was not diagnosed until the February 2015. Moreover, the Veteran does not claim that his OSA had its onset in service. Indeed, he reported that he did not begin experiencing apneic episodes until after his 2004 cystoprostatectomy and his VA treatment records indicate that he first reported symptoms in December 2014. As such, the remaining question is whether OSA is otherwise causally related to the Veteran’s service. With respect to a nexus, the Veteran presented two distinct theories. First, he indicated that the in-service exposure to firing ammunition in closed quarters inhibited his ability to intake and release oxygen. Second, the Veteran indicated that he has abdominal scarring and a weeping abdominal wall that causes obstruction of his diaphragm. While the Veteran is competent to report observable symptoms, he does not possess the medical expertise to provide a medical opinion in this case. The two issues are medically complex, as they require knowledge of interpreting complicated diagnostic medical testing and interpretation of medical records and studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, while the Veteran reported that he began experiencing apneic episodes after his 2004 cystoprostatectomy, again, he is not competent to know that that he is having apneic episodes while he is sleeping, as this requires a sleep study. As such, the Veteran’s contentions with respect to a nexus in this case also cannot serve as basis for an award of service connection. The March 2020 VA examination report indicates that the Veteran’s OSA is not related to service, including his claimed exposure to firing ammunition. The VA examiner concluded that although the claimed exposure may cause anxiety and insomnia, that it does not cause OSA, which is associated with obesity. The VA examiner reviewed the Veteran’s records, as well as contentions, and provided a full rationale for their conclusions. The March 2020 VA examiner’s conclusion is likewise supported by the Veteran’s VA treatment records, indicating that he is at risk for OSA due to having obesity. As such, the March 2020 VA medical opinion is afforded probative value. With respect to the Veteran’s second theory of entitlement, the March 2020 VA examination report indicates that the Veteran does not have a weeping abdominal wall and that his abdominal scarring is neither painful nor restrictive. The Veteran’s VA treatment records support this conclusion. There is no indication that the Veteran was diagnosed or treated for a weeping abdominal wall. There are July 2016 complaints of abdominal pain, but the Veteran’s examination was unremarkable, and the ultrasound ruled out a hernia. Additionally, the October 2016 VA examination report indicates that the Veteran had healed postoperative wounds with weakening of abdominal wall. However, this is not an indication that he had a weeping abdominal wall or that his postoperative scarring was causing pain or restriction. Presence of scarring is also not an indication that the scarring is causing or aggravating the Veteran’s OSA. Moreover, the Veteran’s VA treatment records and March 2020 VA examination report indicate that the Veteran’s OSA is likely attributed to his obesity. Thus, the preponderance of the medical evidence does not support a finding that the Veteran’s OSA was causally related to service, to include claimed in-service exposure to firing ammunition and the Veteran’s service-connected status post cystoprostatectomy. The Veteran was diagnosed with OSA nearly thirty years after service and the record in this case indicates that the Veteran’s OSA has a specific etiology likely related to his obesity. Accordingly, the preponderance of the evidence is against the claim for service connection for OSA, to include secondary to claimed in-service exposure to firing ammunition and secondary to service-connected status post cystoprostatectomy, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Increased Rating 2. Entitlement to an increased rating in excess of 40 percent for the service-connected status post radical cystoprostatectomy with neobladder diversion and residual scars. The Veteran contends that his service-connected status post radical cystoprostatectomy with neobladder diversion and residual scars warrants a higher disability rating than the currently assigned 40 percent. At the January 2020 Board hearing, the Veteran testified that he experienced worse urinary incontinency and urinary frequency, requiring adult absorbent materials at night, and requiring two changes per night, and sometimes up to five changes. The Veteran testified that he also has to hydrate more frequently as a result of loss of one of his kidneys due to his service-connected disability which forces the Veteran to urinate frequently throughout the day. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran’s status post radical cystoprostatectomy with neobladder diversion and residual scars is rated as 40 percent disabling under DC 7516-7527. Hyphenated diagnostic codes are used when rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that a condition of the bladder (Diagnostic Code 7516) is rated under the criteria for prostate gland injuries, infections, hypertrophy and prostate residuals. (Diagnostic Code 7527). DC 7527 rates prostate gland injuries, infections, hypertrophy and prostate residuals as voiding dysfunction or urinary tract infection, whichever is more predominant. In this case, the predominant symptom is voiding dysfunction. Voiding dysfunction is rated under three subcategories of urine leakage, urinary frequency and obstructed voiding. 38 C.F.R. §4.115a. Additionally, pursuant to 38 C.F.R. §4.115a, where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Id. The maximum schedular evaluation for urinary frequency is 40 percent. The maximum schedular evaluation for obstructed voiding is 30 percent. Because the Veteran is receipt of a 40 percent rating, his disability will be evaluated using the criteria for urinary leakage. For urinary leakage, the rating schedule provides a 40 percent rating for a disability requiring the wearing of absorbent materials which must be changed two-to-four times per day. A 60 percent rating is warranted for a disability requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. §4.115a. In May 2015, the Veteran underwent a VA examination for the male reproductive system. He was diagnosed with erectile dysfunction. It was noted that the Veteran underwent surgery with removal of the bladder and prostate and subsequently started to experience erectile dysfunction. The VA examiner noted that his treatment plan did not include taking medication. The Veteran was noted to have voiding dysfunction which did not cause urine leakage and did not require the use of an appliance. The VA examiner also noted that the Veteran’s voiding dysfunction did not cause increased urinary frequency or symptoms or signs of obstructed voiding. There was no history of recurrent symptomatic urinary tract or kidney infections. An August 2015 VA urology note indicates that the Veteran was doing well and that his neobladder emptied completely. The Veteran denied urinary tract infections, flank pain, or any problems at all. The Veteran reported stress urinary incontinence and nocturnal incontinence and indicated that he uses blue pads on bedding and wears pads during the day, but they are generally dry. A September 2015 VA sleep clinic note indicates that the Veteran has two interruptions per night for chronic incontinence. In July 2016, the Veteran underwent a VA examination for kidney conditions. He was diagnosed with chronic kidney disease. There was no noted renal dysfunction and no kidney, uretal or bladder calculi. There was no noted kidney transplant or removal. The VA examiner noted that there is no evidence of edema in the left or right lower extremities. A November 2016 VA primary care note indicates that the Veteran was diagnosed with chronic kidney disease which is stable. He was noted to have left renal dysfunction and left atrophic kidney possibly from chemotherapy. It was noted that his chronic kidney disease is monitored. His baseline creatine was 1.3-1.5 and baseline eGFR was 60-70. A December 2016 VA urology note indicates that the Veteran was provided with depends/bed pads for incontinence. At his January 2020 Board hearing, the Veteran testified that he has frequent incontinence the requires changing a pad twice nightly. In March 2020, the Veteran underwent a VA examination for his claim. The VA examiner confirmed the 2004 diagnosis of neobladder diversion, status post radical cystoprostatectomy. Under current symptoms, the Veteran reported daily leakage and indicated that he wears protective garment. The Veteran was noted to have voiding dysfunction for which he wears protective gear at night and urinates hourly during the day. His voiding dysfunction did not require use of an appliance but was noted to cause increased urinary frequency of daytime voiding interval between 1 and 2 hours, and nighttime interval of awakening to void 2 times per night. There were signs of obstructed voiding in the form of a weak stream that was not markedly weak, and decreased force of stream. The Veteran was not noted to have a history of urethral or bladder calculi or recurrent symptomatic bladder or urethral infections. There were no symptoms attributed to urethral fistula, or any other bladder conditions. The Veteran’s cancer was noted to be in remission with no residual conditions or complications due to the neoplasm which were not already documented in the March 2020 VA examination report. In March 2020, the Veteran also underwent a VA examination for scars associated with his service-connected status post radical cystoprostatectomy with neobladder diversion. The Veteran was noted to have three post-operative scars on the anterior abdominal wall which were not painful or unstable. The scars were measured at 38 by 1.2 centimeters, 3 by .1 centimeters, and 3 by .1 centimeters in size. The approximate total area was measured at 46.2 centimeters squared. These scars were noted to be without underlying tissue damage. There were no other pertinent findings and that Veteran’s scars were not noted to have a functional limitation on work. Based on the review of the entire record, the Veteran’s overall disability picture more closely approximates voiding dysfunction requiring wearing of absorbent materials which must be changed two to four times per day. The Veteran’s service-connected status post radical cystoprostatectomy with neobladder diversion does not require use of an appliance or wearing of absorbent materials which must be chanted more than four times per day. As such, a disability rating in excess of 40 percent is not warranted. The Veteran’s private treatment records and the March 2020 VA examination report indicate that the Veteran’s predominant disability is voiding dysfunction, based on symptoms of urine leakage and incontinence, requiring daytime void in intervals between 1 and 2 hours, and nighttime awakening to void two times per night. The Veteran’s September 2015 VA sleep clinic note indicates that the Veteran has two interruptions per night for chronic incontinence. The May 2015 and March 2020 VA examination reports likewise illustrate that the Veteran has two interruptions per night for chronic incontinence. The August 2015 VA urology note indicates that the Veteran wears protective pads during the day, but they are generally dry. Further, there is no evidence that the Veteran requires use of an appliance. Thus, the preponderance of the evidence supports a finding that the Veteran’s service-connected status post radical cystoprostatectomy with neobladder diversion does not manifest in use of an appliance or wearing of absorbent materials which must be changed more than four times per day. The Veteran testified that he generally changes his protective padding twice per night but sometimes up to five times per night. Changing protective pads up to five times per night does not warrant an evaluation in excess of 40 percent for urinary frequency. Accordingly, even if the Veteran’s disability requires him to wake up to void five or more times per night, a 60 percent evaluation based on a voiding dysfunction is not warranted. Of note, the Veteran is in receipt of maximum schedular rating and special monthly compensation for erectile dysfunction associated with status post radical cystoprostatectomy. Additionally, a separate evaluation for the Veteran’s post-operative scars is not warranted as the Veteran’s scars were not found to be painful or unstable, did not cause disfigurement of the head, face, or neck, and did not have underlying soft tissue damage. 38 C.F.R. §4.118 DCs 7800, 7801, 7802, and 7804. With respect to renal dysfunction, the Veteran is in receipt of a separate 60 percent rating for the service-connected chronic kidney disease, associated with status post radical cystoprostatectomy with neobladder diversion and residual scars. The next higher rating of 80 percent requires evidence of persistent edema and albuminuria with BUN 40 to 80mg%; or, creatine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. §4.115a DC 7355. As evidenced by the July 2016 VA examination report and the November 2016 VA urology note, the Veteran did not have persistent edema and albuminuria, creatine 4 to 8mg%, or generalized poor health. Therefore, an increased rating is not warranted on this basis. Furthermore, no other diagnostic codes are applicable. There is no evidence that the Veteran’s symptomatology or overall disability picture more nearly approximate a circumstance involving multiple urethroperineal fistulae (38 C.F.R. § 4.115b, DC 7519) or kidney transplant surgery (38 C.F.R. §4.115b, DC 7531). The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. (Continued on the next page)   Accordingly, the Veteran’s overall disability picture more closely approximates voiding dysfunction requiring the wearing of absorbent materials which must be chanted two to four times per day. As such, an increased rating in excess of 40 percent is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.