Citation Nr: A21019869 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 210618-167267 DATE: December 14, 2021 ORDER A rating in excess of 50 percent for sleep apnea is denied. An earlier effective date prior to May 15, 2017, for service-connected sleep apnea is denied. An effective date of September 15, 2017, but no earlier, is granted for the award of total disability based on individual unemployability (TDIU). An effective date of September 15, 2017, but no earlier, is granted for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35. FINDINGS OF FACT 1. The Veteran served on active duty from June 1976 to January 1981. 2. Sleep apnea does not result in chronic respiratory failure, carbon dioxide retention, or cor pulmonale, and does not require a tracheostomy. 3. There is no correspondence that could be construed as a claim for service connection for a sleep apnea disorder prior to May 15, 2017. 4. The Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities from September 15, 2017. 5. The Veteran has a permanent and total disability rating based on individual unemployability due to his service-connected PTSD disorder as of September 15, 2017. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6847. 2. The criteria for an effective date earlier than May 15, 2017, for the grant of service connection for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.157, 3.400. 3. The criteria for entitlement to a TDIU are met from September 15, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. The criteria for basic eligibility to DEA benefits under 38 U.S.C. § Chapter 35 from September 15, 2017, have been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written under the AMA guidelines. In a September 2020 rating decision, the Regional Office (RO) granted service connection for sleep apnea effective May 15, 2017, found that entitlement to TDIU and basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 had been established effective August 30, 2019. The Veteran disagreed with the initial rating and effective date assigned for sleep apnea, as well as the effective dates for sleep apnea, DEA, and TDIU and opted into the AMA review system by submitting a timely VA Form 10182 to the Board in June 2021 and requested a Direct Review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Increased Rating for Sleep Apnea Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's sleep apnea is rated under DC 6847, which provides a 50 percent rating when the sleep apnea requires the use of a breathing assistance device such as CPAP machine. A 100 percent rating is assigned for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. The evidence of record shows that, throughout the rating period, the Veteran's sleep apnea was of enough severity to require the use of a CPAP machine. The evidence, however, does not show that sleep apnea resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that it required a tracheostomy. In July 2017, the Veteran underwent an in-person VA examination regarding his sleep apnea. The Veteran reported that he snored in-service, had sleepiness issues, and fell asleep on duty and was reported. His further stated that his weight was 160 to 185 in the military and since discharge he has gained 100 pounds. The examiner noted that the Veteran did not require medication or a breathing assistance device for his sleep apnea but that he did use a CPAP machine. The examiner also noted that the only symptoms associated with sleep apnea were persistent daytime hypersomnolence and carbon dioxide retention. The examiner did not indicate that the Veteran had chronic respiratory failure with carbon dioxide retention or cor pulmonale or required tracheostomy. In October 2019, the Veteran underwent an in-person VA examination regarding his sleep apnea. The Veteran reported that he had periods of apnea when hospitalized for meningoencephalitis and a subsequent sleep study showed obstructive sleep apnea. In retrospect, he stated "he recalled being very sleepy a lot dating back to military service but never considered having it evaluated." The examiner noted that the Veteran did not require medication or a breathing assistance device for his sleep apnea but that he did use a CPAP machine. The examiner did not indicate that the Veteran had chronic respiratory failure with carbon dioxide retention or cor pulmonale or required tracheostomy. Moreover, the Veteran's VA treatment records to the present indicate controlled sleep apnea with CPAP machine therapy and do not indicate that the Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy. The Board finds that the medical evidence demonstrates that the Veteran's sleep apnea is properly contemplated by the 50 percent rating as his sleep apnea requires the use of CPAP machine therapy. As the evidence does not demonstrate that the Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy, the Board finds that a rating in excess of 50 percent under DC 6847 for sleep apnea is not warranted. The Board considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's sleep apnea has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinion great probative value. For these reasons, a schedular rating in excess of 50 percent for sleep apnea have not been met or more nearly approximated for any period on appeal. As the preponderance of the evidence is against the claim, the appeal is denied. Earlier Effective Dates for Grant of Service Connection for Sleep Apnea The Veteran seeks an effective date prior to May 15, 2017, for the award of service connection for his sleep apnea. Turning to the relevant laws and regulations, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). In the present case, the Veteran was assigned an effective date of May 15, 2017, based on a formal claim for service-connection of the same date. At the outset, the claim was received well after one year following the Veteran's discharge from service. As such, the RO based the May 15, 2017, effective date for the award of service connection for sleep apnea on the receipt on that date of a formal claim. Upon review of the totality of the record, there is no communication from the Veteran received prior to May 15, 2017, which could reasonably be construed as a formal or informal unadjudicated claim for service connection for sleep apnea. The Veteran did not file a claim for service connection for sleep apnea until May 2017. Specifically, he did not assert, and the record does not show, that he filed a claim of entitlement to service connection for sleep apnea prior to May 2017. As there remain no formal or informal unadjudicated claims provided or received prior to May 15, 2017, it is considered the date of the claim of entitlement to service connection for sleep apnea. As the preponderance of the evidence is against the claim, an effective date prior to May 15, 2017, for the award of the benefit of service connection for sleep apnea is denied and the benefit of the doubt doctrine is not for application. As such, the appeal is denied. Earlier Effective Date for the Grant of TDIU The Veteran contends that his TDIU should be granted an earlier effective date. In a September 2020 rating decision, a TDIU was granted, effective August 30, 2019, based on the date of the VA examination which revealed that he was unable to secure and follow substantially gainful employment as a result of his service-connected posttraumatic stress disorder (PTSD). The Veteran argued that he is entitled to a TDIU from May 15, 2017. Generally, 38 C.F.R. § 3.400 states that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. The Board notes that during the pendency of the appeal for an increased rating for PTSD, the Veteran also claimed entitlement to a TDIU. Accordingly, as the claim for a TDIU is part of the Veteran's claim for an increased rating, the period on appeal extends to the date of the increased rating claim. The Veteran was granted an increased rating for PTSD from September 15, 2017. Therefore, when looking at the entire period on appeal from September 15, 2017, the Board must consider when TDIU may be assigned. The evidence supports a grant of TDIU, effective September 15, 2017. The Veteran is currently service connected for PTSD at a rating of 50 percent from November 2, 2001, and 70 percent from September 15, 2017, and sleep apnea at a rating of 50 percent from May 15, 2017. The Veteran's combined ratings are 80 percent effective May 15, 2017 and 90 percent effective September 15, 2017. Hence, he met the percentage criteria for a TDIU set forth in 38 C.F.R. § 4.16(a) from May 15, 2017. The Veteran's VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability notes that the Veteran last worked in December 2016 as a driver. He also noted completing a high school education. Further, he stated he was unable to drive because of seizures, cognitive issues and also depression, anxiety and fatigue. On a September 2017 VA examination, the Veteran reported that he stopped working last December due to medical issues, specifically the Veteran developed meningitis. The examiner opined that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. Symptoms included anxiety, sleep impairment, difficulties in establishing and maintaining effective work and social relationships and difficulties adapting to stressful circumstances. A private vocational assessment from April 2019 has been associated with the claims file. The rehabilitation counselor noted a thorough review of the Veteran's claims file, treatment records and prior examinations. The assessment reported a phone interview with the Veteran who reported symptoms of paranoia, social anxiety, negative thinking, nightmares, intrusive memories, difficulty managing anger, impulsivity, homicidal and suicidal ideation and memory problem as a result of his service-connected PTSD. The Veteran indicated that he previously limited what kinds of driving he would do in order to avoid more than superficial social interactions. He noted leaving his delivery job because of fear he would have to talk to other employees when clocking in and out. He further indicated that he left his job as a taxi driver and Uber driver as he would avoid driving on Friday and Saturday nights because he could not deal with drunk passengers who triggered memories from his time in the military police. The rehabilitation counselor opined that the Veteran was more likely than not unable to secure and follow substantially gainful employment as a result of his service-connected since he last worked in 2016. On an August 2019 VA examination, the examiner opined that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. Symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adaption to stressful circumstances, suicidal ideations. In a January 2020 VA Disability Questionnaire (DBQ) medical opinion, the examiner indicated multiple factors that impacted the Veteran's occupational functioning including mild memory loss, such as forgetting names, directions or recent events, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner also noted that, the PTSD symptoms described caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Board finds that there is competent and credible evidence since the date of receipt of the Veteran's increased rating claim on September 15, 2017, that he has been unable to secure and maintain substantially gainful employment due to his service-connected disabilities. The Board finds that based on the evidence of record an earlier effective date of September 15, 2017 is warranted for the grant of TDIU, the date of the Veteran's increased ratings claim. The Board finds that the totality of the evidence of record indicates that it is factually ascertainable the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected PTSD since September 15, 2017. With respect to an effective date earlier than September 15, 2017, the Board notes that generally the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2020). The Veteran's TDIU claim was part and parcel of his increased rating claim, filed on September 15, 2017. There is no evidence of record indicating a formal or informal claim prior to this date or earlier records showing a factual increase in severity of the claimed disabilities such that the Veteran was unable to sustain substantially gainful employment. As such, the proper effective date can be no earlier than the date of receipt of the increased rating claim September 15, 2017. As such the Board finds that the criteria for an effective date of September 15, 2017 forward, but no earlier for entitlement to TDIU have been met. Considering all lay and medical evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of September 15, 2017, the date of receipt of the increased rating claim, is warranted. Earlier Effective Date for the Grant of DEA Benefits The Veteran is in receipt of DEA benefits effective from August 30, 2019, as that was the previous effective date of the award of a TDIU, prior to the award of an earlier effective date for TDIU herein. For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35, the child, spouse or surviving spouse of a veteran or service person will have basic eligibility if the veteran: (1) Was discharged from service under conditions other than dishonorable, or died in service; and (2) Has a permanent total service-connected disability; or (3) A permanent total service-connected disability was in existence at the date of the veteran's death; or (4) Died as a result of a service-connected disability; or (if a serviceperson) (5) Is on active duty as a member of the Armed Forces and (i) Now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) Has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, or air service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. In this case, the award of DEA benefits is based on a permanent total service-connected disability. As the grant of TDIU provides this level of disability, the effective date of the Veteran's eligibility for DEA benefits is contingent on the effective date for TDIU benefits. Accordingly, in light of the grant of an earlier effective date of September 15, 2017 for the award of a TDIU herein, an effective date of September 15, 2017 for DEA eligibility is also warranted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. J. IN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.