Citation Nr: 21064601 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-41 066 DATE: October 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected PTSD is denied. Prior to February 25, 2016, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 25, 2016, the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment. 2. The most probative evidence of record shows that sleep apnea was not present during service or until many years thereafter and it is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU, prior to February 25, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 2. The criteria for entitlement to service connection for sleep apnea, to include as secondary to PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2012 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded for further evidentiary development in May 2018, September 2020, and April 2021. Specifically, in April 2021, the Board remanded the obstructive sleep apnea claim for the purpose of obtaining an addendum VA medical opinion. The Board remanded the TDIU claim, noting that such was inextricably intertwined with the obstructive sleep apnea claim. In July 2021, a VA examiner provided an addendum opinion as to the nature and etiology of the Veteran's obstructive sleep apnea. The Board finds that this opinion is adequate and substantially complies with the directives set forth in the April 2021 remand directive. Thus, the Board finds that both the claim for obstructive sleep apnea and entitlement to TDIU are now properly before the Board for adjudication. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that in a June 2021 rating decision, a TDIU was granted effective February 25, 2016. However, since the Veteran filed his claim for TDIU prior to such date, the Board finds that the claim for TDIU prior to February 25, 2016 is still in an appellate status. The Board will therefore solely address the Veteran's claim for a TDIU prior to February 25, 2016. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability, in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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 or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. See VAOPGCPREC 1-2017 (January 6, 2017). However, obesity, may be an "intermediate step" between a service-connected disability and a current disability for which service connection may be granted on a secondary basis under 38 C.F.R. § 3.310(a). See id.; see also Walsh v. Wilkie, No. 18-0495, slip op. at 4-5 (U.S. Vet. App. February 24, 2020) (precedential panel decision) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected PTSD The Veteran contends that service connection is warranted for OSA, to include as secondary to his service-connected PTSD and the medications to treat it. In February 2015, the Veteran was diagnosed with obstructive sleep apnea via sleep study. Thus, he has a current diagnosis. Additionally, with regard to secondary service connection, he is service-connected for PTSD, so this element is met. With regard to an in-service event, injury or disease, the Veteran's January 1970 separation examination shows that the Veteran denied any trouble sleeping. He has reported that he was told in service that he snored and stopped breathing during sleep. Thus, given the Veteran's report of observable lay symptoms, the Board finds that there is evidence of an in service incurrence. Turning to nexus, the treatment for the Veteran's OSA shows that in January 2015, the Veteran presented for evaluation of sleep concerns. At such time, the Veteran stated that his wife had noticed him snoring and waking up during the night with concerns of sleep apnea. The Veteran also reported that he gained at least 15 pounds during the past year. In a July 2015 otolaryngology consultation, the Veteran presented with complaints of sleep apnea, noting that he could not tolerate his CPAP mask and wanted surgery. At the time of treatment, the examiner noted that the Veteran had a deviated left nasal septum. In August 2015, the Veteran was assessed with OSA, a deviated septum and turbinate hypertrophy/rhinitis. It was also noted that the Veteran was intolerant to his CPAP. In January 2016, the Veteran underwent various procedures, to include an uvulopalatal pharyngoplasty, septoplasty, and anterior turbinate reduction with Coblation. An etiology opinion was obtained in a VA examination in October 2016. The examiner opined that it was less likely than not that the Veteran's OSA was proximately due to or the result of his PTSD. The examiner reasoned that medical literature does not mention PTSD as a cause or risk factor for sleep apnea, noting that PTSD has no effect on the muscles of the airway resulting in sleep apnea. The examiner also reported that while there have been several articles referencing the presence of sleep apnea in individuals with PTSD, there is still no medical evidence showing that PTSD actually causes sleep apnea. The examiner further noted that the Veteran had risk factors of male sex, obesity, advanced age, chronic nasal congestion from his allergic rhinitis (which the Board notes is not service connected), and COPD which alone or in concert would have predisposed the Veteran to develop OSA. The examiner also opined that it was less likely than not that the Veteran's OSA was proximately due to the medications used to treat his PTSD. The examiner reasoned that the current medical literature does not demonstrate that sleep apnea is a very common occurrence with the medications that the Veteran had used for his PTSD and that the Veteran had several risk factors which alone or in concert would have predisposed him to develop OSA. Additionally, the examiner opined that it was less likely than not that the Veteran's OSA was aggravated beyond its natural progression by his PTSD and the medications that he used to treat it. The examiner rationed that the notes in the Veteran's CAPRI records demonstrate that his OSA was stable; had been addressed by surgery; and required no other treatment at this time. The examiner further reported that there were no other abnormalities and that he had no other pertinent physical findings, complications, or signs related to it. The Board then remanded the claim in May 2018, noting that the October 2016 examiner did not opine whether the Veteran's medications for PTSD led to any weight gain, which in turn caused sleep apnea. The Veteran then underwent a VA examination in June 2019. During the examination, the Veteran reported that he was told during service that he began snoring loudly and that he would stop breathing during his sleep. The examiner opined that the Veteran's OSA was less likely than not proximately due to or aggravated by his service-connected PTSD. The examiner reasoned that medical literature did not mention PTSD as a cause or risk factor for sleep apnea, or that sleep apnea was a very common occurrence with the medications that are used for PTSD. Also, the VA examiner reasoned that PTSD had no effect on the muscles of the airway resulting in sleep apnea. The examiner referenced that the Veteran has risk factors of male sex, obesity, advanced age, chronic nasal congestion due to allergic rhinitis, and chronic obstructive pulmonary disease which either alone or in concert could have predisposed him to developing OSA. In an April 2020 VA medical opinion, a VA examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of his service-connected PTSD, including weight gain as a result of medication used for PTSD. The VA examiner reasoned that although there is an association with veterans having OSA and PTSD at the same time, OSA was secondary to dynamic narrowing of the upper airway such as closure of the oral pharynx during sleep and was not caused by a psychological condition such as PTSD. The Board then remanded the claim in September 2020, noting that the June 2019 and April 2020 opinions only addressed the causation prong for secondary service connection and did not address whether the Veteran's service-connected PTSD, to include the medications taken for such, aggravated his OSA. Additionally, in the remand directives, the Board directed that a VA examiner opine as to whether the Veteran's OSA was related to his military service, with consideration of his lay statements concerning onset and continuity of symptomatology, as well as the Veteran's August 2016 VA medication list. In November 2020, a VA examiner opined that it was less likely than not that the Veteran's OSA had its onset in or was otherwise related to his active-duty service. The examiner reasoned that the Veteran's service treatment records were silent for the claimed condition, further noting that the Veteran responded "NO" to trouble sleeping on his January 1970 separation medical history exam. The examiner further noted that the Veteran's subsequent medical records documented a diagnosis of OSA in 2015, 45 years following service, with a borderline BMI ranging from 29 to 30 since 2007. The examiner also stated that medical literature did not support a causal relationship between PTSD and OSA, although PTSD can cause insomnia. The examiner also opined that it was less likely than not that the Veteran's OSA was proximately due to or the result of his service-connected PTSD. The examiner reasoned that review of the Veteran's weight between 2007 and 2020 indicated fluctuations, but no significant sustained weight increase over time. The examiner also noted that the history of the Veteran's medications taken since 2007 was reviewed, but that there were no medications used to treat his PTSD until 2018. The examiner acknowledged that the Veteran was diagnosed with OSA in 2015 (prior to initiation of those medications). The examiner also reported that although obesity was a risk factor for developing OSA, it was not the cause and there were multiple other known risk factors, including chronic nasal congestion, sex, and family history. The Board then remanded the claim in April 2021, noting that the November 2020 addendum opinion did not address aggravation. In the remand directives, in relevant part, the Board specifically directed that an examiner, on remand, address the timeframe from March 2015 to January 2016 when the Veteran's OSA was symptomatic; the effects of medications prescribed to the Veteran for manifestations of his service-connected PTSD; and the Veteran's documented weight throughout the appeal period. In July 2021, a VA examiner provided an addendum opinion. Here, the examiner opined that it was less likely than not that the Veteran's OSA was aggravated beyond the natural progression by his PTSD. The examiner noted that the Veteran had difficulty with CPAP use due to nasal congestion, turbinate hypertrophy, and septal deviation. The examiner further noted that the Veteran's inability to use his CPAP mask properly was not due to a mental health condition or to claustrophobia. The examiner also noted that the Veteran's medical treatment plan for PTSD included sertraline for less than three months in 2014 (at which time the Veteran weighed 202.6 pounds); Trazodone for one month in November 2014 (at which time the Veteran weighed 211 pounds); Hydroxyzine in May 2015 (at which time the Veteran weighed 205 pounds in April 2015 and June 2015); Trazodone in December 2015 (at which time the Veteran weighed 207 pounds); Escitalopram, Prazosin, and Trazodone with continued benefit into 2019 (at which time the Veteran's weight ranged between 199 and 202 pounds). Here, the examiner stated that the Veteran had weight fluctuations well within the range of normal for an adult male of his stature. The examiner further noted that there was no correlation of significant weight gain with any medication during the period of aggravation requested to be reviewed between 2015 and 2016 and that there was no worsening of the Veteran's OSA due to his PTSD treatment. The examiner further noted that there was no current aggravation post-surgery and that there was no aggravation beyond the natural progression by his PTSD. Here, the examiner stated that the aggravation was prior to the operation and that it was resolved at this time. The Board finds that the most probative evidence of record shows that the Veteran's OSA is not related to service or to his PTSD. In evaluating whether the Veteran's OSA onset during or is otherwise related to service, the only evidence of record to support such a link is his own lay assertion that he was told that, while in the service, he snored and stopped breathing during his sleep. Here, although lay persons are competent to provide opinions on some medical issues, and to report observable symptoms, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of sleep apnea falls outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, while the Veteran can competently report the onset of symptoms such as snoring or waking up due to breathlessness, any opinion regarding the nature and etiology of his condition requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board cannot assign any probative weight to the Veteran's assertions that his symptoms during service (and subsequent development of sleep apnea) is in any way related to his military service. See Waters v. Shinseki, 601 F.3d at 1278-79. Additionally, the weight of the evidence reflects that the Veteran's obstructive sleep apnea is unrelated to his service-connected PTSD and the medications used to treat it. Again, the Board acknowledges the Veteran's lay statements and personal belief that there exists a medical relationship between his diagnosed OSA and his service-connected PTSD. Yet, again, the Veteran is not competent to determine the nature and etiology of his condition as it requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board cannot assign any probative weight to the Veteran's assertions that his stated condition is in any way related to his PTSD or to the medications to treat it. See Waters v. Shinseki, 601 F.3d at 1278-79. The Board affords great probative weight to the opinions of the VA examiners. In this regard, various examiners reviewed the Veteran's electronic claims file and offered a thorough discussion analyzing all the pertinent evidence of record, to include the Veteran's medical history, and explaining the medical basis for the opinions. More specifically, when viewing the July 2019, April 2020, November 2020, and July 2021 VA examiners' opinions, in tandem, it is evident that each examiner determined that it was less likely than not that the Veteran's obstructive sleep apnea was caused or aggravated by his PTSD, and adequate rationale was provided to support the respective opinions. Notably, no examiner noted a relationship between PTSD and OSA. Similarly, the Board finds that the Veteran has not established that his PTSD, to include the treatment required for it, caused him to become obese, that obesity was a substantial factor in causing the sleep apnea, and that the sleep apnea would only have occurred but for the obesity. Again, obesity is not a disability per se, but it may serve as an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. See 38 C.F.R. § 3.310. As to the medical evidence of record, the Board acknowledges the October 2016 VA opinion in which the examiner noted that the Veteran had various risk factors, to specifically include obesity. In this regard, the examiner still opined that it was less likely than not the Veteran's OSA was related to his PTSD or the medications used to treat it, although an opinion as to whether the Veteran's medications for PTSD led to any weight gain, which in turn caused sleep apnea, was not provided. Also, included within the November 2020 addendum opinion is a notation that the Veteran was overweight to obese in 2007, before even starting his PTSD medication. Notably, the July 2021 VA examiner evaluated the Veteran's medical history, to include his recorded weight between 2007 to 2019. In doing so, the examiner concluded that even with such weight fluctuations, that there was no correlation of significant weight gain with any medication during the period of aggravation requested to be reviewed between 2015 and 2016 and that there was no worsening of the Veteran's OSA due to his PTSD treatment. Thus, the examiner concluded that his OSA was less likely than not aggravated beyond the natural progression by PTSD. The Board, again, finds this evidence probative because the examiner possessed the necessary education, training, and expertise to provide the requested opinion and it was based on a thorough review of the claims file. Consequently, the Board gives more probative weight to the VA medical opinions and concludes that the Veteran has not established that his treatment required for his PTSD caused him to become obese, that obesity was a substantial factor in causing the sleep apnea, and that the sleep apnea would only have occurred but for the obesity. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply, and the claim must be denied. Service connection is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TDIU A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside of the norm. The sole fact that he or she is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 1. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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 includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to TDIU The Veteran is service connected for PTSD (rated 50 percent from January 11, 2012; 70 percent from February 25, 2016; and 100 percent from June 25, 2019); tinnitus (rated 10 percent from January 11, 2012); and bilateral hearing loss (rated 0 percent from January 11, 2012). The Veteran's combined evaluations for compensation is 60 percent from January 11, 2012; 70 percent from February 25, 2016; and 100 percent from June 25, 2019. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). Accordingly, the Veteran does not meet the schedular criteria for TDIU for the period prior to February 25, 2016. Id. A veteran who fails to meet these percentage standards may still qualify for an extraschedular TDIU rating under 38 C.F.R. § 4.16(b). As noted previously, the Veteran has been granted a TDIU, effective February 25, 2016. Thus, the Board will only discuss whether the Veteran is entitled to TDIU prior to this date on an extraschedular basis under section 4.16(b). In an April 2012 Hearing Loss and Tinnitus DBQ, the examiner noted that the Veteran's hearing loss impacted ordinary conditions of daily life, including his ability to work. As to functional impact, however, the examiner noted that the Veteran was fit with hearing aids and that he needed to turn the volume up on the television and that talking on the telephone can be a problem. The examiner also noted that the Veteran's tinnitus did not impact ordinary conditions of daily life, including his ability to work. In a May 2012 PTSD examination, an examiner noted that the Veteran worked as a firefighter for eighteen years and that he had temper problems when employed. It was also noted that the Veteran worked at several short-term jobs since leaving the Fire Department but has not held steady employment for the past 20 years. The examiner further noted that the Veteran was not currently employed, but he was receiving non-service-connected pension for the past three years due to ". . . physical problems and not being able to keep a job." In an April 2014 VA Form 21-8940, the Veteran stated that he last worked as an inspector in November 2007. Prior to that time, the Veteran stated that he worked as a fireman. The Veteran noted that his PTSD prevented him from securing or following a substantially gainful employment. He further indicated that he left his last job as a result of his disability and did not expect to receive disability retirement benefits. The Veteran also stated that he completed two years of college, but he did not have any other education or training. In a June 2014 PTSD DBQ, the examiner stated that the Veteran's work history has not changed in that the Veteran had not worked in the past five to six years. The Veteran further reported that he had not had a "real steady job" in the past 20 years. He stated that his last job was doing some construction inspections, and the Veteran reported that he quit because he did not get along with people. He would get "pissed off" with co-workers and would have verbal confrontations with them. He further stated that he did not like being told what to do and did not like people giving him feedback because he believed that he already knew what he was doing. In a June 2014 General Medical Compensation DBQ, the examiner noted that "solely with regard to his PTSD, the veteran's ability to perform day to day activities, especially in a work setting is within normal limits. His ability to interact appropriately with others is moderately impacted by irritability and sensitivity to criticism, but he evidences adequate impulse control. His mental flexibility, concentration and memory are deemed to be within reasonable limits." In an August 2014 NOD, the Veteran stated that he cannot hold substantial employment due to the severity of his PTSD. In a September 2014 VA Form 9, the Veteran noted that he previously took a job in the field away from people in the office, but he found himself becoming irritated with the people he interacted with and had to quit as a result. In a January 2015 VA treatment record, the Veteran reported that he worked as a firefighter for twenty years and was retired. VA treatment records, dated January 2015 to December 2015 note that the Veteran presented with complaints of sleeping problems; depression; and anxiety. Prior to February 25, 2016, the Veteran's service-connected disabilities do not present a disability picture indicating that TDIU is warranted. The record reflects that prior to this date, the Veteran's tinnitus and bilateral hearing loss did not significantly affect his ability to work, as noted by the April 2012 VA examination. As to the Veteran's service-connected PTSD, the record prior to February 25, 2016 does not indicate that this disability affected his overall ability to obtain or maintain employment. There is no indication that the Veteran has physical limitations on his ability to work based on his service-connected disabilities, thus, he is not limited to sedentary jobs. Moreover, the evidence does not indicate that his service-connected psychiatric condition prevented him from being employable. While the Veteran has self-reported that he cannot get along with others and dislikes authority and this is why he cannot get and retain a job, the other evidence of record does not support this assertion. As noted above, the medical evidence does not indicate that his psychiatric symptoms prevent him from following directions or getting along sufficiently to maintain employment. The Board finds this evidence more probative than the Veteran's statements that he cannot work with others, accept feedback, or follow instructions. Thus, the preponderance of the probative evidence is against a finding that he is unemployable due to his service-connected disabilities and referral to the Director of Compensation Service is not warranted. Entitlement to TDIU prior to February 25, 2016 is denied. See 38 C.F.R. § 4.16(b). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.