Citation Nr: 21072488 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-23 774 DATE: December 3, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is denied. As of November 3, 2016, a total disability rating based on individual unemployability due to service connected disabilities (TDIU), exclusive of the time period where the Veteran is in receipt of special monthly compensation (SMC) at the housebound rate, is granted. REMANDED Entitlement to a TDIU prior to November 3, 2016, is remanded. FINDINGS OF FACT 1. OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by service-connected asthma with chronic obstructive pulmonary disease (COPD). 2. Resolving all doubt in the Veteran's favor, as of November 3, 2016, exclusive of the time period where he is in receipt of SMC at the housebound rate, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 2. As of November 3, 2016, exclusive of the time period where the Veteran is in receipt of SMC at the housebound rate, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1965. While he has a subsequent period of active duty from November 1965 to August 1968, such has been determined to be dishonorable and, therefore, a bar to VA benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2013 and January 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and August 2020, the Board remanded the above claims for additional development and they now return for further appellate review. The Board observes that, while additional evidence consisting of updated VA treatment records was received after the issuance of the April 2021 supplemental statement of the case, such are irrelevant to the matters adjudicated herein or include findings duplicative to those previously considered by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.1305(c). Thus, there is no prejudice to the Veteran in proceeding with an adjudication of his claims at the present time. 1. Entitlement to service connection for OSA, to include as secondary to service-connected asthma with COPD. As an initial matter, the Board notes that the Veteran has not reported the specific date of onset of his OSA, nor has he asserted that such began during service. However, as reflected in his treatment of record, he has reported experiencing periods of apnea since approximately 2009, which is over 40 years after his discharge from service in 1965. Thus, while the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to OSA, and the record does not suggest that his OSA had affirmative inception during service (see Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008)), evidence of record nonetheless raised the possibility of a link between such disorder and his service-connected asthma with COPD. Specifically, an April 2014 VA treatment record reflects that the Veteran presented for evaluation of his COPD, reporting that he was finding it difficult to breathe; and his spouse reported that he snored loudly and sometimes stopped breathing. Further, a May 2014 VA treatment record shows that the Veteran was referred to the pulmonary clinic for evaluation of OSA due to worsening fatigue and shortness of breath. In this regard, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may not be established on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). In December 2019, the Veteran underwent a VA examination in connection with his claim. The examiner noted a diagnosis of OSA on the examination report and referenced a sleep study that was performed in December 2019 by Midwest Sleep Medicine Consults. However, at such time, the Veteran reported that he never underwent a sleep study and the examiner found that the Veteran did not have, nor ever had, sleep apnea. Nevertheless, the examiner opined that it was less likely than not that the Veteran's claimed OSA was proximately due to or aggravated by his service-connected asthma with COPD. Such opinion was based on the fact that there was lacking sufficient evidence in the scientific literature of a causative role for asthma/COPD and the development or worsening of OSA, as well as the fact that the Veteran's OSA had not been confirmed by a sleep study. However, as noted in the August 2020 remand, such examination was inadequate as the examiner was inconsistent regarding whether there was a current diagnosis of OSA, and the Veteran had not been provided a sleep study to confirm such diagnosis. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for proper appellate decision."). Accordingly, the Veteran underwent an additional VA examination in October 2020. An accompanying sleep study performed in January 2020 confirmed a current diagnosis of OSA. Following a full review of the record, the examiner opined that the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service-connected asthma with COPD. In support thereof, the examiner indicated that the Veteran had a family history of OSA, and the sleep study was equivocal. Additionally, the examiner noted that the Veteran had a history of smoking for 45 years and a past history of heavy alcohol use. Here, the examiner explained that both of these conditions were associated with significant risk for development of OSA. The October 2020 VA examiner further opined that the Veteran's OSA was less likely than not aggravated beyond its natural progression by his asthma with COPD. As rationale for the opinion, the examiner indicated that, per the January 2020 sleep study, the Veteran's OSA appeared to be mild/equivocal and there was simply no evidence, in the form of serial sleep studies or reported/documented worsening signs/symptoms, that would support aggravation. The examiner further indicated that the Veteran did not use a CPAP machine. Thus, the examiner concluded that it could not be established that the Veteran's OSA had been aggravated beyond its natural progression by his service-connected asthma with COPD. The Board affords great probative weight to the October 2020 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements, his medical history, and relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran's assertions as to the etiology of his OSA. However, as he is a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. In this regard, the etiology of OSA involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, it involves knowledge of the anatomy of the upper respiratory system, to include whether specific symptoms are indicative of a diagnosis of OSA, and the impact an additional respiratory disability may have on such system. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of OSA, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his OSA is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that OSA is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by service-connected asthma with COPD. Thus, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for OSA. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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 or keep employment. The ultimate question, however, 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, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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 the 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. For the entire appeal period stemming from August 15, 2012, the date of receipt of the Veteran's TDIU claim, he is service-connected for asthma with COPD, evaluated as 30 percent disabling; left knee osteoarthritis evaluated as 10 percent disabling, effective February 2, 2015; right knee osteoarthritis and right knee instability, each evaluated as 10 percent disabling from February 2, 2015, to April 15, 2019; migraine headaches and unspecified depressive disorder, each evaluated as 50 percent disabling, effective November 3, 2016; right knee arthroplasty, evaluated as 100 percent disabling from April 15, 2019, and 30 percent disabling, effective June 1, 2020; and a scar of the right knee, evaluated as noncompensably disabling, effective February 2, 2015. Thus, the Veteran had a combined disability rating of 30 percent prior to February 2, 2015; 50 percent as of February 2, 2015; 90 percent as of November 3, 2016; 100 percent with SMC at the housebound rate as of April 15, 2019; and 90 percent as of June 1, 2020. Accordingly, the Veteran does not meet the schedular threshold for a TDIU prior to November 3, 2016. Nonetheless, if his service-connected disabilities render him unemployable prior to such date, the case may be referred to the Director of Compensation Service for extra-schedular consideration. Further, as the Veteran has been awarded SMC at the housebound rate from April 15, 2019, to June 1, 2020, his claim for a TDIU is moot for such time period. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the remaining inquiry is whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the appeal period prior to November 3, 2016, such that referral to the Director of Compensation Service is warranted, or as of such date, exclusive of the time period where he is in receipt of SMC at the housebound rate, such that an award of a TDIU is warranted. In regard to the Veteran's work history, his August 2012 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) indicates that he last worked full time in May 2010 as a store manager. Similarly, a June 2020 VA Form 21-8940 also indicates that the Veteran last worked full time in May 2010 as a store manager. However, the Veteran reported that, from June 2018 to December 2018 he worked as a driver, about 30 hours a week; and from January 2019 to April 2019, he worked as a stocker, for about 25 to 30 hours a week. In this regard, the Board finds such work to be marginal in nature as he only worked for a few months and did not earn more than marginal earnings. Additionally, in regard to his education, the Veteran indicated that he only completed 3 years of high school and has no additional training. As pertinent to the functional impairment resulting from the Veteran's service-connected disabilities, at an October 2012 VA examination, the Veteran reported that he last worked as a store manager at a beauty supply store and lost his job due to the economy. The examiner, at the time, determined that the Veteran was not limited from working based on any of his service-connected conditions. Rather, he found that the Veteran was able to secure and maintain gainful employment in any capacity requiring sedentary or physical labor when considering his service-connected asthma. Moreover, October 2012 and February 2015 VA examination reports indicated that his service-connected asthma had no impact on his ability to work. However, at a February 2016 VA examination, it was noted his asthma and COPD impacted his ability to work. Notably, he was limited from heavy physical work but not from sedentary or light physical work due to his symptoms of dyspnea on exertion, chronic productive cough, and wheezing. Additionally, a December 2019 VA examiner found moderate impairment to the Veteran's ability to work due to dyspnea on exertion and shortness of breath, even with some activities of daily living, that limits most strenuous activities. Further, an October 2020 VA examiner indicated that the Veteran's asthma with COPD impacted his ability to work, noting moderate impairment due to dyspnea on exertion and lack of exercise tolerance which limited vigorous physical activity significantly. In regard to his service connected right and left knee disabilities, in April 2015, a VA examiner found that such impacted his ability to work in that he was unable to walk or stand for 15 minutes. In December 2019, a VA examiner found that the Veteran's bilateral knee disabilities resulted in moderately severe impairment due to pain with any standing/walking and he could not squat, kneel, crawl, or repetitively climb stairs, which limited all these activities markedly. Additionally, an October 2020 VA reported that the Veteran was limited to sedentary activities due to his bilateral knee pain and stiffness; and he could not stand/walk for more than a few minutes, and could not squat/kneel/climb. As relevant to his service-connected unspecified depressive disorder, in October 2017, his private physician, Dr. R.W., noted that he could not sustain the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity. A December 2019 VA examination report indicates that his psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Moreover, at the time, the Veteran reported that he worked as an assistant manager at a Wal-Mart but left because he wanted to manage his own store. Thereafter, he worked as a manager at a Family Dollar, but left for a better opportunity. He later worked at a beauty supply company as a retail manager for 6 years until he lost his job when the business closed. At the time of the examination, the Veteran reported that he sometimes got frustrated, discouraged, and depressed because the dust in the stores aggravated his breathing condition causing him to be less productive. A July 2020 VA examiner also found that the Veteran's unspecified depressive disorder with anxious distress resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Finally, in regard to the Veteran's service-connected headaches, in December 2017, his private physician, Dr. H.S., indicated that he experienced prostrating headaches approximately once every week that required him to retreat from bright lights and lie down in a dark environment for up to four hours. During such events, he would be unable to sustain even minimal adequate focus and attention, which would require him to leave work early or miss work entirely during such episodes. An October 2020 VA examiner found that the Veteran's headache condition resulted in mild impairment due to difficulty concentrating on cognitive tasks when he had a headache due to light sensitivity and nausea. In June 2020, a vocational assessment completed by a private vocational expert, Dr. S.B., reflects the opinion that the Veteran was totally occupationally disabled from all competitive employment due to his service-connected disabilities. In this regard, it was noted that the Veteran was unable to perform his prior work in retail management, as a stock person, and shuttle driver due to the physical and mental limitations from his service-connected impairments. These occupations required the individual to be on his feet for more than 10 to 15 minutes at a time. In addition, a shuttle driver required constant use of the lower extremities, which would exacerbate the Veteran's knee symptoms. His mental issues with concentration and social interaction would further restrict return to his prior set of jobs. Dr. S.B. also noted that while the October 2012 and February 2015 VA examiners found the Veteran's respiratory disorders had no impact on his ability to work, the February 2016 VA examiner found that he would be limited from heavy physical work. In regard to his unspecified depressive disorder, treatment records documented his anxiety, depression, irritability, trouble concentration, can't get or keep a job, knee and foot pain, shortness of breath, poor sleep with wheezing, and daytime fatigue which would result in an inability to sustain work demands of even unskilled work. Thus, while VA examiners found that the Veteran's psychiatric disorder did not impact his ability to work, or did not prevent him from obtaining sedentary employment, Dr. S.B. noted that performance of sedentary work was precluded by the mental issues with concentration, stress tolerance, interaction with others and ability to demonstrate acceptable production pace. Finally, Dr. S.B. determined that the Veteran would be expected to miss more than one day per month (research showed that most employers allowed for no more than 8 days per year), based on his reports of his physical and mental symptoms. Therefore, based on the totality of the file, Dr. S.B. found that the Veteran was totally occupationally disabled from all competitive employment due to his service-connected disabilities. Based on a review of the foregoing evidence, the Board finds that, as of November 3, 2016, exclusive of the time period where he is in receipt of SMC at the housebound rate, the Veteran' service-connected disabilities rendered him unemployable. Specifically, the record reflects that his service-connected disabilities hinder his ability to work in a physical and sedentary environment as he has difficulty standing, walking, squatting, kneeling, crawling, or repetitively climbing stairs, and generally performing any strenuous physical work; and his headache and psychiatric disorder resulted difficulty with concentration and interacting with others, which significantly impaired his ability to function in an occupational environment. Therefore, as the Veteran only completed three years of high school and has worked primarily performing physical duties, resolving all doubt in his favor, the Board finds that as of November 3, 2016, exclusive of the time period where he is in receipt of SMC at the housebound rate, his service-connected disabilities rendered him unable ot secure or follow a substantially gainful occupation consistent with his education and work history. Thus, a TDIU is warranted as of such date, exclusive of the time period where he is in receipt of SMC at the housebound rate. REASONS FOR REMAND 3. Entitlement to a TDIU prior to November 3, 2016. As the evidence suggests that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and work history due to his service-connected disabilities prior to November 3, 2016, the case should be referred to the Director of Compensation Service for consideration of whether a TDIU is warranted on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the case to the Director of Compensation Service for extra-schedular consideration of a TDIU prior to November 3, 2016, pursuant to 38 C.F.R. § 4.16(b). K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.