Citation Nr: 21004125 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-09 483 DATE: January 26, 2021 ORDER Service connection for sleep apnea is granted. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED The issue of an increased rating for chronic obstructive pulmonary disease (COPD) with atelectasis is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea had its onset during service or is otherwise related to service. 2. The Veteran’s service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1983 to August 1984. The matters of an increased rating for COPD and entitlement to a TDIU come before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision, and the matter of service connection for sleep apnea comes before the Board from a February 2014 rating decision. In an August 2015 decision, the Board remanded the matter of service connection for sleep apnea and directed the agency of original jurisdiction (AOJ) to issue a statement of the case (SOC). Subsequently, in a February 2019 decision, the Board remanded the matters of service connection for sleep apnea and increased rating for COPD to obtain VA examinations. Further, the Board also remanded the matter of entitlement to a TDIU finding that it was intertwined with the claims of service connection for sleep apnea and an increased rating for COPD. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show the existence of (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Sleep Apnea The Board has reviewed the evidence of record and finds that service connection is warranted for the Veteran’s sleep apnea. First, the Board notes that the Veteran’s available service treatment records (STRs) do not exhibit complaints, treatment, or evidence of sleep apnea. During his January 1983 entrance examination and June 1984 separation examination, there are also no indications of sleep apnea. In July 2016, the first medical evidence of sleep apnea is noted in his private medical records. In support of his claim of service connection for sleep apnea, in July 2012 the Veteran submitted a statement regarding sleep apnea stating that among his disabilities and symptoms he experienced difficulty breathing during the day and at night, difficulty sleeping, headaches, lack of energy, and fatigue. Additionally, in July 2012 the Veteran submitted a statement from a caretaker. The caretaker stated that she cared for the Veteran for the previous three years and that among the Veteran’s disabilities and symptoms she observed that the Veteran experienced breathing problems, which caused trouble sleeping and chronic fatigue. In November 2018, the Veteran submitted private medical records, a sleep apnea disability benefits questionnaire completed by a private physician, and a private medical opinion with supporting scientific literature. First, the private medical records include a July 2016 sleep study in which the Veteran was diagnosed as having mild obstructive hypopnea and apnea. Further, an August 2016 sleep study performed with CPAP titration demonstrated significant improvement in apneas and CPAP therapy was prescribed. Second, in the sleep apnea disability benefits questionnaire completed by the Veteran’s private physician, the Veteran was noted to have a diagnosis of obstructive sleep apnea with prescribed CPAP therapy. The physician noted that the diagnosis was supported by the July 2016 sleep study and an evaluation under the Epworth Sleepiness Scale. Third, in the private medical opinion, the Veteran’s private physician noted that the Veteran is diagnosed as having a service-connected psychiatric disability. The physician stated that psychiatric disabilities are commonly associated with sleep apnea and that those with psychiatric disabilities have a higher prevalence of having a sleep apnea diagnosis than those without psychiatric disabilities. The physician also noted that the Veteran is diagnosed as having service-connected COPD. The physician stated that although there is not a causal connection between COPD and sleep apnea, patients with both conditions have increased sleep-related oxygen desaturation, have a lower mean arterial blood saturation, spend more time in desaturation, have a higher breathing frequency, and have a lower tidal volume than those with sleep apnea alone. Moreover, the physician stated that the effect of COPD with sleep apnea is that the ability to exchange oxygen and carbon dioxide in the lungs is decreased leading to a harmful buildup of excessive carbon dioxide in the bloodstream. Therefore, the physician opined that the Veteran’s service-connected psychiatric disability and service-connected COPD aided in the development of and permanently aggravated his sleep apnea. The physician also provided scientific literature, including medical studies, which support the provided opinion. As noted above, in the February 2019 decision, the Board remanded the matter of service connection for sleep apnea to obtain a VA examination, finding that the private medical opinion submitted in November 2018 did not meet the standard required for service connection. Subsequently, in June 2019, the Veteran was afforded an VA examination with claims file review regarding sleep apnea. The examiner noted that the Veteran was diagnosed as having sleep apnea in 2017 after a sleep study that showed obstructive sleep apnea. The Veteran reported daytime sleepiness, fatigue, and difficulty staying alert and focused. The examiner opined that it is less likely than not that the Veteran’s sleep apnea was caused or aggravated by service or a service-connected disability. In support of this conclusion, the examiner stated the Veteran reported having a previous sleep study performed but that no sleep study was found. Thus, the examiner concluded that there is no objective evidence on examination to warrant a diagnosis of sleep apnea. The Board finds that the probative evidence of record demonstrates at least equipoise regarding the matter of service connection for sleep apnea. First, the February 2019 VA examiner concluded that the Veteran’s sleep apnea was not caused or aggravated by service or a service-connected disability based on the lack of a sleep study objectively demonstrating a diagnosis of sleep apnea; however, as noted above, in November 2018 the Veteran submitted private medical records, including a sleep study dated July 2016, which demonstrated a diagnosis of sleep apnea. Thus, the Board finds that the conclusions of the June 2019 VA examiner are inadequate and based on inaccurate facts as the evidence of record includes a sleep study objectively demonstrating that the Veteran has a diagnosis of sleep apnea. Moreover, in reaching the provided conclusions, the June 2019 VA examiner failed to address the thorough and well-reasoned medical explanation provided by the Veteran’s private physician. Second, the conclusions of the Veteran’s private physician determined that it is more likely than not that the Veteran’s sleep apnea was permanently aggravated by his service-connected COPD and psychiatric disability. Additionally, the physician determined that the Veteran’s service-connected COPD and psychiatric disability more likely than not aided in the development of his sleep apnea. Thus, the Board finds that the private physician’s well-reasoned medical explanation, which is also supported by scientific literature and medical studies, demonstrates at least equipoise regarding the matter of establishing secondary service connection by demonstrating a nexus relationship between the Veteran’s sleep apnea and his service-connected COPD and psychiatric disability. Accordingly, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is at least in equipoise. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for sleep apnea is granted. TDIU A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor that places the Veteran in a different category than other Veterans with equal ratings of disability. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has reviewed the evidence of record and finds that TDIU is warranted. As an initial matter, the Board notes that the Veteran met the schedular requirements for TDIU throughout the period on appeal. Specifically, his service-connected disabilities include the following: a psychiatric disability rated at 70 percent, COPD rated at 30 percent, and hepatitis B with a noncompensable rating. Therefore, the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a) are met. The remaining, and dispositive, question is whether the service-connected disabilities render him incapable of participating in regular and substantially gainful employment consistent with his education and work experience. First, the Veteran underwent a psychological examination in July 2010 with a private medical provider regarding his application for benefits from the Social Security Administration (SSA) for his disabilities, including nonservice-connected disabilities as well as his service-connected psychiatric disability. The examiner noted that the Veteran’s educational history included a high school diploma with some college. The examiner also noted that the Veteran’s employment history included only employment at fast food restaurants. The examiner indicated that the Veteran was terminated from his most recent employment due to complaints regarding temperament, irritability, fatigue, lack of energy, and difficulty recalling orders, tasks, and supervisor requests. The examiner also noted a prior position at a fast food restaurant in which the Veteran was unable to continue employment due to his inability to cooperate with his supervisor. The examiner documented that due to the Veteran’s psychiatric symptoms his daily activities are limited; he maintains hygiene with reminders and occasional assistance; and he has withdrawn from social activities. Following a psychological assessment, the examiner concluded that the Veteran is able to understand and remember simple instructions; however, his ability to consistently carry out complex instructions is likely impaired. The examiner also concluded that the Veteran’s concentration is impaired and is likely inadequate for basic work-related functions; his ability to adhere to a typical work schedule is poor; and his ability to maintain an adequate pace in a work setting is poor. The examiner also found that the Veteran may experience an exacerbation in symptoms under increased stress, which would further impair his ability to substantially engage in gainful employment. Next, in July 2014, a private medical provider completed a mental disorders disability benefits questionnaire accompanied by a medical opinion. The examiner noted that the Veteran’s psychiatric symptoms include depressed mood, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner determined that due to his psychiatric symptoms the Veteran would likely be absent from the workplace for three or more days per month; leave early from the workplace for three or more days per month; be unable to stay focused for at least seven hours of an eight-hour workday for more than three days per month; and would respond in an angry manner without becoming violent more than once per month. The examiner concluded that based on the severity of the Veteran’s psychiatric symptoms he would be unable to sustain the stress from a competitive work environment and cannot be expected to engage in gainful employment activity. Additionally, in June 2015 a private medical provider also provided an assessment regarding the Veteran’s ability to engage in substantial employment based only on his service-connected COPD and hepatitis B. The examiner determined that in an eight-hour workday the Veteran would be able to stand for two to four hours; walk for less than two hours, sit for four to six hours, lift less than ten pounds, and carry less than ten pounds. The examiner also determined that due to the Veteran’s service-connected COPD and hepatitis B he would need to leave early from the workplace for three or more days per month; would require additional breaks to lie down one or more times per day; and be unable to stay focused for at least seven hours of an eight-hour workday for more than three days per month. Additionally, as noted above, in July 2012 the Veteran submitted a statement from a caretaker. The caretaker stated that she cared for the Veteran for the previous three years and that among the Veteran’s disabilities and symptoms she observed that the Veteran experienced difficulties with breathing, walking, and climbing stairs. She also observed that the Veteran experienced chronic fatigue and trouble sleeping. She stated that when she takes him to routine appointments, he requires breathing treatments due to aggravated symptoms of COPD. The caretaker stated that because of the Veteran’s shortness of breath due to COPD he would be unable do any type of work or even low-energy activity. Lastly, in June 2019, the Veteran underwent a VA examination regarding the severity of his service-connected COPD. The Veteran reported that his COPD symptoms included shortness of breath and wheezing. The examiner determined that the Veteran’s ability to work would be impacted by his COPD. Specifically, the examiner found that the Veteran would have difficulty with any occupation that exposes him to air pollutants, smoke chemicals, fumes, strenuous activity, extreme weather conditions, and environments that are not well-ventilated. The Board finds the probative evidence of record demonstrates that the Veteran’s service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. First, the severe functional impact of the Veteran’s psychiatric symptoms described by the July 2010 private medical examiner would preclude the Veteran from maintaining substantially gainful employment. Specifically, the findings indicate that the Veteran would be unable to maintain adequate work quality and productivity; establish and maintain effective work relationships; adapt to stressful circumstances; maintain attendance and punctuality; attend to work tasks on a consistent basis; and maintain concentration throughout the workday. Second, the July 2014 private medical examiner’s findings also indicate that the Veteran suffers from depressed mood, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, and that these symptoms would preclude the Veteran from obtaining and retaining substantially gainful employment. Third, the evidence in the July 2015 private medical provider’s assessment, July 2012 caretaker’s statement, and June 2019 VA examination also indicate that the Veteran’s COPD symptoms would affect his ability to engage in substantially gainful employment. Specifically, the Veteran’s ability to walk, climb stairs, carry, sit, and stand are severely impaired by his COPD symptoms, most notably shortness of breath. Additionally, the Veteran’s COPD symptoms impair his ability to be exposed to fumes and areas that are not well-ventilated, and the Veteran’s employment history includes only positions in fast food restaurants, which require exposure to small and hot kitchen spaces that may not be well-ventilated. Therefore, given the nature and severity of the Veteran’s service-connected disabilities, limited educational background, and limited employment experience, the Board finds it reasonable to conclude that his service-connected disabilities render him unemployable. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing TDIU have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. REASONS FOR REMAND In November 2020, the AOJ received a new VA examination regarding the Veteran’s COPD, which was not previously considered in the August 2020 supplemental statement of the case (SSOC). In November 2020, the Veteran’s representative submitted an appellate brief and waived the Veteran’s right, for only the evidence attached to the appellate brief, for an initial review of the evidence by the AOJ prior to the Board issuing a decision on this matter. 38 C.F.R. §§ 19.31, 19.37. Further, the November 2020 appellate brief specifically addressed only the matters of service connection for sleep apnea and entitlement to a TDIU. Accordingly, a remand is warranted for the AOJ to consider the newly associated relevant evidence. The matters are REMANDED for the following action: 1. The AOJ should undertake any additional action it deems necessary in order to properly adjudicate the claim. 2. If the benefits sought on appeal should remain denied, issue the Veteran a supplemental statement of the case (SSOC) and afford adequate time to respond before returning the matter to the Board for further appellate review. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.