Citation Nr: 21067300 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-09 857 DATE: November 3, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability prior to April 29, 2020 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that sleep apnea is either etiologically related to service or is caused or aggravated by a service-connected disability. 2. The Veteran's service-connected disability does not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for TDIU have not been met prior to April 29, 2020. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1962 to September 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2018 Department of Veterans Affairs (VA) regional office (RO) rating decision. In November 2020 and June 2021, the Board remanded these claims for further development. Said development will be discussed below. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Service connection for certain chronic diseases may be established based on a continuity of symptoms since discharge. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Diabetes is a chronic disease for which service connection may be established based on a continuity of symptoms or presumption. Obesity is not generally considered to be a disease or injury and therefore may not be directly connected to service. See VAOPGCPREC 1-2017 (Jan. 6, 2017). However, VA's Office of General Counsel has opined that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Id. In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disease caused the veteran to become obese; (2) such obesity is a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity. Id. In a recent decision, the United States Court of Appeals for Veterans Claims modified the analysis set out in the General Counsel's opinion, holding that in considering whether obesity is an "intermediate step," consideration must be given to whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300 (2020). Entitlement to service connection for sleep apnea The Veteran contends that he developed sleep apnea as a result of service, to include as secondary to his service-connected posttraumatic stress disorder (PTSD). The Board additionally notes that the Veteran is presumed exposed to herbicides while serving in Vietnam. 38 C.F.R. § 3.307. Service treatment records reflect no documented complaints of findings for abnormal lung pathology or trouble breathing. The Veteran's September 1966 separation examination reflects normal clinical evaluation of the lungs and normal chest x-ray. The first diagnosis of sleep apnea was September 2014. November 2017 post-service treatment records confirm this diagnosis and indicate that he was "strongly recommended" to modify his diet and lose weight. The November 2020 Board decision has already found the September 2018, October 2018, and February 2020 VA examinations inadequate. As they have already been deemed inadequate, they will not be discussed any further. While a February 2020 private disability benefits questionnaire confirmed the diagnosis of sleep apnea, it did not provide an etiological opinion. In a March 2021 VA examination, the examiner opined that the Veteran's sleep apnea was less likely than not related to service. The examiner explained that the "veteran's obesity was the likely cause for veteran developing sleep apnea." The examiner also opined that the Veteran's sleep apnea was less likely than not caused or aggravated by his PTSD as his obesity, directly, caused his sleep apnea. As part of the June 2021 remand, the Board explained that while the VA examiner opined that it was less likely than not that the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD, he was not asked to address, and did not explicitly address, the question of whether the Veteran's obesity had been caused or aggravated by his service-connected PTSD. In an August 2021 VA medical opinion, the examiner clarified his opinions. First, the examiner opined that the Veteran's sleep apnea was less likely than not related to service, to include herbicide exposure. The examiner reasoned that the 2014 pressure titration report noted a history of obesity with a BMI of 30.4. The examiner explained that in the obese, "fat deposits in the upper respiratory tract narrow the airway; there is a decrease in muscle activity in this region, leading to hypoxic and apneic episodes, ultimately resulting in sleep apnea." The examiner additionally stated that "given the diagnosis years later," his sleep apnea did not begin in service. Regarding secondary service connection, the examiner reasoned that there was lack of support in the records that the Veteran became obese due to his PTSD, or that his PTSD aggravated his obesity. Put another way, while the Veteran was noted to be obese, the medical records failed to show that his obesity was caused or aggravated by PTSD. Based on the above, the Board concludes that the preponderance of the evidence is against the claim. First, while the Veteran is presumed exposed to herbicides, sleep apnea is not a disease presumptively associated with it. Thus, presumptive service connection must be denied. Second, the Board finds that the evidence of record is insufficient to establish entitlement to service connection by proof of direct causation due to herbicide exposure, as the evidence does not show any competent opinion that the Veteran's sleep apnea is related to herbicide exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To the contrary, the August 2021 VA examination concluded that it was the Veteran's obesity which caused his sleep apnea, and not herbicide exposure. Third, the Board finds that the Veteran's sleep apnea did not begin in service or is otherwise directly related to service. The August 2021 VA examination provides sufficient evidence against this theory. Specifically, the Veteran was not diagnosed with sleep apnea until September 2014, many decades after separation from service. Given the diagnosis years later, the Board concludes that his sleep apnea did not begin in service or is otherwise related to service. Fourth, the Board finds that the weight of the evidence is against a finding that the Veteran's sleep apnea is caused or aggravated by his PTSD, to include the obesity that the Veteran associates with his PTSD. The Board places great probative weight on the August 2021 VA examiner's conclusion that the Veteran's PTSD less likely than not caused or aggravated his sleep apnea as there is no information in the claims file directly linking his obesity with PTSD. The Board also notes the March 2021 VA examiner's opinion that there is a lack of evidence to support that the Veteran's sleep apnea was caused or aggravated by his PTSD. These VA examinations were based on the current medical literature and a review of the claims file. Rodrigues-Nieves v. Peake, 22 Vet. App. 295 (2008). While the Veteran has been successful in showing a link between his sleep apnea and obesity, the evidence falls short in establishing a link between his service-connected PTSD and obesity. This portion is the missing link. The only evidence the Board can find are post-service treatment record recommendations to "exercise for pulmonary hygiene," and that was "strongly recommended" to modify his diet and lose weight. While it shows that the Veteran's obesity plays a role in his sleep apnea, it does not show, specifically, how his obesity was caused or aggravated by his service-connected PTSD. See VAOPGCPREC 1-2017 (Jan. 6, 2017). For this reason, the Veteran's argument fails. The Board has additionally considered the lay evidence in this case, in particular, the Veteran's statements that he believes that his PTSD caused or aggravated his sleep apnea. However, this is not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's sleep apnea is related to his PTSD, the Board affords the objective medical evidence of record, which weighs against finding such a connection, greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran's pulmonary system, the internal functioning of which is not readily perceivable by the use of a person's senses. In sum, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for sleep apnea a direct, secondary, or presumptive basis. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied. 38 U.S.C. § 5107(b). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). A request for TDIU is not a separate claim for benefits, but it is instead an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part of the claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran is service connected for PTSD, rated at 50 percent disabling prior to April 29, 2020, and tinnitus rated at 10 percent disabling from July 22, 2019. (As his PTSD was rated 100 percent disabling as of April 29, 2020, the Board will not consider entitlement to TDIU as of that date.) Taking these together, the Veteran is rated at 50 percent prior to July 22, 2019, and 60 percent thereafter. For the entire appeal period, the Veteran is not eligible for TDIU consideration on a schedular basis. As such, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. Upon review of the record, the Board finds that the preponderance of the evidence establishes that the Veteran's service-connected PTSD and tinnitus did not preclude him from securing or following a substantially gainful occupation prior to April 29, 2020. A June 2018 private letter from the Veteran's pulmonologist states that he is unable to maintain his employment because of his respiratory condition and sleep apnea. A January 2020 private disability benefits questionnaire also states that the Veteran's chronic obstructive pulmonary disorder prevents him from working. In a June 2018 lay statement, the Veteran contended that he left his job at a funeral home in November 2016 "because I was unable to do any lifting; to go up and down stairs; to run the funeral home's parking lot which required a lot of running & moving around. If I attempted . . . I would have difficulty breathing and I was constantly out of breath." In an August 2018 lay statement, the Veteran wrote that his pulmonologist "no longer permitted employment." Importantly, the Veteran is not service connected for any respiratory disability. As part of a September 2018 VA examination into the severity of his PTSD, the examiner opined that the Veteran's "functioning in an employment setting has never been negatively impacted by his PTSD symptoms since early on when he left the Marine Corps. He reported that his relationships in the workplace have been good and that work has always been a means of "keeping my mind busy" in order to distract from PTSD symptomology. He denied any history of problems with interpersonal relationships in the workplace, motivation, attendance or performance." In a February 2019 VA examination into the severity of his PTSD, the examiner likewise opined that that his PTSD did not impact his ability to work. At a January 2020 VA examination into the severity of the Veteran's tinnitus, the examiner opined that the tinnitus did not impact any ordinary conditions of daily life, to include the Veteran's ability to work. The Veteran described his tinnitus as occurring 3 to 4 times weekly for 10 to 15 minutes at a time. After reviewing the evidence, the Board finds that referral is not warranted. The evidence shows that the Veteran's service-connected disabilities had no impact on his ability to work in a substantially gainful position for the period prior to April 29, 2020. The Board highlights the September 2018, February 2019, and January 2020 VA examinations in that regard. Furthermore, the evidence in the claims file supports a finding that the Veteran is unable to work due to non-service-related reasons. For example, the June 2018 private letter, January 2020 private DBQ, and lay statements from the Veteran all indicate that he became unable to work at the funeral home due to his respiratory conditions. Because these respiratory items are not related to service, they cannot support a claim of TDIU. Given the foregoing, the Board finds that the preponderance of evidence weighs against a finding that the Veteran meets the requirements for entitlement to a referral of his TDIU claim for consideration on an extraschedular basis. Thus, the Board declines to remand the claim for referral for consideration of TDIU on an extraschedular basis. The claim is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.