Citation Nr: 21006255 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-17 930 DATE: February 3, 2021 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for insomnia is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 25, 2011 through March 26, 2015 is granted. FINDINGS OF FACT 1. The record indicates that the evidence is insufficient to establish service connection for sleep apnea. 2. The record of evidence is insufficient to establish service connection for a separate diagnosis of insomnia. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence indicates that the Veteran’s service-connected disabilities prevented him from finding and following substantially gainful employment from February 25, 2011 through March 26, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for insomnia have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for a TDIU have been met from February 25, 2011 through March 26, 2015. 38 U.S.C. §§ 5102, 5103, 5103A 5107(b); 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from February 1973 to February 1997. In December 2019, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. In April 2020, the Board remanded the appeal for further development. Service Connection 1. Service connection for obstructive sleep apnea The Veteran contends that his sleep apnea is due to his period of service. The Board finds that, while the Veteran has a current diagnosis of obstructive sleep apnea and his service treatment records indicate complaint of sleep issues, the evidence is insufficient to establish that the Veteran’s sleep apnea is related to his period of service. A January 2011 VA medical record confirms the Veteran has a diagnosis of sleep apnea. The Veteran’s service treatment records indicate an April 1995 report of insomnia, another April 1995 report of sleep disturbance with onset in March or April of 1991 lasting 5 to 6 months, another April 1995 assessment of sleep disturbance with fatigue and memory difficulties, and an August 1996 report of constant sleep problems lasting for the past year. At the outset, the Board notes that in an April 2020 Board decision, the Board found the August 2011 and February 2015 VA opinions to be inadequate. Therefore, no further analysis of these opinions is necessary. In a September 2020 VA addendum opinion, the examiner opined that it is less likely than not that the Veteran’s sleep apnea is due to his period of service. The examiner stated that the Veteran’s file was reviewed without a finding of a diagnosis of obstructive sleep apnea while he was in service, nor complaints of awakening gasping for air or choking. The examiner noted that the Veteran has documented complaints of sleep issues while in service but stated that these appear to pertain to insomnia and difficulty falling/staying asleep. The examiner also stated that there is no evidence to show that the Veteran had a diagnosis of obstructive sleep apnea or was suspected of the condition while in service. The examiner noted that testing for obstructive sleep apnea during the Veteran’s time in service was not readily performed or available. Given this, the examiner concluded that the Veteran’s obstructive sleep apnea was less likely than not incurred in or caused by obstructive sleep apnea during service. The Board finds the examiner’s use of the Veteran’s medical history and knowledge of the diagnosis of obstructive sleep apnea to be adequate for the purpose of adjudicating the claim. Moreover, the Board finds the opinion to be highly probative in determining whether there is a nexus between the Veteran’s period of service and his current sleep apnea due to the detailed history and explanation given. After review of the record, the Board finds that the evidence is insufficient to establish service connection for sleep apnea. The probative medical opinion of record did not find a nexus between the Veteran’s in-service complaints and his current sleep apnea. As such, service connection for sleep apnea is not warranted. While the Veteran believes that his sleep apnea is related to his period of service, he is only competent to report symptoms and is not competent to opine on the etiology of obstructive sleep apnea, as this is a medically complex question. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report observed symptoms, any opinion regarding whether his condition was related to his period of service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Therefore, the Veteran’s statements regarding etiology hold no probative value. As the probative medical evidence does not establish a nexus, the criteria for service connection has not been met. 2. Service connection for insomnia The Veteran contends that his insomnia is due to his period of service. The Board finds that, while the Veteran has a complaint of insomnia and his service treatment records indicate complaint of sleep issues, the evidence is insufficient to establish that the Veteran’s insomnia is related to his period of service. The Veteran’s service treatment records indicate an April 1995 report of sleep disturbance with onset in March or April of 1991 lasting 5 to 6 months, another April 1995 assessment of sleep disturbance with fatigue and memory difficulties, and an August 1996 report of constant sleep problems lasting for the past year. In an October 2020 VA addendum opinion, the examiner stated that it is less likely than not that the Veteran’s claimed insomnia is due to his period of service. The examiner explained that there is no separate, distinguishable diagnosis of insomnia. The examiner noted that the symptom of insomnia is subsumed in the diagnosis of PTSD. The examiner stated that it is at least as likely as not that the Veteran’s symptom of insomnia is aggravated by his aforementioned, non-service-connected sleep apnea. The examiner stated that this opinion is based on meeting DSM-V criteria, the Veteran’s statement of symptoms and review of the Veteran’s medical record. The Board finds this medical opinion highly probative in nature due to the consideration of the Veteran’s medical history and knowledge of medical literature. After review of the record, the Board finds that the evidence is insufficient for service connection for insomnia. The medical evidence indicates the Veteran does not have a separate diagnosis of insomnia; rather, the Veteran’s symptoms of sleep impairment are related to his already service-connected PTSD. As the Veteran’s symptoms have already been contemplated by his PTSD rating, and the Veteran does not have a separate, distinguished disability, service connection for insomnia is not warranted. While the Veteran believes that he has insomnia that is related to his period of service, he is only competent to report symptoms and is not competent to opine on the etiology of insomnia, as this is a medically complex question. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report observed symptoms, any opinion regarding whether his condition was related to his period of service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Therefore, the Veteran’s statements regarding etiology hold no probative value. As the probative medical evidence does not establish a nexus, the criteria for service connection has not been met. 3. A TDIU The Veteran contends that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. At the outset, the Board notes that the Veteran has had a 100 percent rating with special monthly compensation under 38 U.S.C. § 1114(s) since March 27, 2015. Therefore, from March 27, 2015 and thereafter, the issue of a TDIU is moot, as the Veteran is in receipt of maximum benefits. Thus, the period of analysis for the claim of TDIU will focus on the period of February 25, 2011, the date of the Veteran’s filing for a TDIU, through March 26, 2015. The Board finds that the evidence of record is at least equipoise that the Veteran’s service-connected disabilities, individually or in aggregate, prevented the Veteran from finding and following substantially gainful employment. 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. 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.” 38 C.F.R. §§ 3.340(a)(1), 4.15. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Turning to the evidence, from February 25, 2011, the Veteran had compensable ratings for the following disabilities: cluster headaches at 50 percent, right knee anterior cruciate ligament deficiency at 30 percent, lumbar spine disability at 20 percent, sick sinus syndrome, coronary artery disease with a pacemaker at 10 percent, right knee limitation of motion at 10 percent, left ankle strain at 10 percent, and cervical spine disability at 10 percent. From September 17, 2014, in addition to the aforementioned compensable ratings, the Veteran was awarded a 10 percent rating for left knee degenerative joint disease. The Veteran had a combined rating of 80 percent from February 25, 2011 to September 17, 2014, and a 90 percent rating from September 17, 2014 to March 27, 2015. Thus, the Veteran has met the schedular criteria for a TDIU. In an April 2011 Application for Increased Compensation Based on Unemployability, the Veteran stated that he became too disabled to work in August 2010. The Veteran reported his last occupation as a field technician from July 2008 to August 2010 where the Veteran reported a loss of 175 hours from illness. Prior to that, the Veteran worked as a telecommunications engineer from August 2007 to February 2008 where the Veteran reported a loss of 120 hours from illness. The Veteran worked from October 2004 to August 2007 as a telecommunications engineer at a different company where Veteran reported that he lost 400 hours of work due to illness. The Veteran stated that he had completed two years of college. The Veteran stated that he had earned $70,000 in the last twelve months. The Veteran also stated that he left his last employment because of his disabilities. The Veteran stated that he has tried to obtain employment since he became too disabled to work. In a May 2011 VA examination, the examiner noted that the Veteran experienced increased absenteeism at his usual occupation due to pain from his lumbar spine disability. The examiner also noted effects on usual daily activities as discomfort with bending at knees, including bending required to operate a car, due to his knee disabilities. During the examination, the examiner noted the Veteran’s report of headaches occurring three to four times a week with a duration of two to three hours and that they are aggravated by light. The examiner described the Veteran’s treatment as a combination of treatments for this condition including the use of aspirin and ibuprofen. The examiner stated that the Veteran’s headaches did not rise to the intensity of cluster headaches. The examiner explained that, because the Veteran’s headaches responded to medication, the Veteran’s migraines were considered mild. The examiner opined that none of the Veteran’s claimed problems reasonably prohibit all kinds of employment. The examiner stated that the examination and testing left some doubt as to whether he could not have tolerated the job he left due to health reasons. The examiner noted that there may have been some aspects of the last job that made it difficult, such as long trips with a bad knee, much bending down with a bad knee, or bending to fix large computer hardware, but other jobs do not require much bending or sitting for long periods. The examiner stated for example, it would seem that his computer hardware skills might be transferable to desk top computers that aren’t so heavy, where one can adjust the work level. The examiner went on to state that, as a result of the examination, none of the joint or back problems make the Veteran unemployable. Most of the above discussion was of the knee. The back problem was not found bad enough for the Veteran to do his last job. Based on physical examination and testing, the examiner stated that it was simple arthritis. In a June 2012 lay statement, the Veteran stated that he resigned from his job in August 2010 due to medical reasons and time management. The Veteran also stated that he could not do his job anymore due to pain increasing from chronic joint pain, problems with memory, numbness in arms and legs, severe migraine headaches, limitations lifting objects due to back problems and various non-service-connected disabilities. The Veteran further stated that, in talking to colleagues, they concluded that the only way for him to be able to work without interference from his disabilities would be to seek a doctorate in technology. In a September 2014 VA examination, the examiner found that the Veteran’s heart condition had no functional impact on his employment. In a September 2014 VA knee examination, the examiner stated that there was no functional impact due to the knees, but the examiner also remarked that it is anticipated that he would have functional loss of both knees during flare-ups and repetitive use limited to 100 degrees of forward flexion due to pain. In a September 2014 VA examination, the examiner found that the Veteran’s cervical spine condition had no functional impact on his employment. In a February 2015 VA examination, the examiner noted that the Veteran’s lumbar spine caused functional impact in that it limits his lifting, bending, stretching and carrying. After review of the record, the Board resolves reasonable doubt and finds that the evidence shows that the Veteran was unable to find and follow substantially gainful employment due to his service-connected disabilities from February 25, 2011 through March 26, 2015. The Board notes that the medical evidence indicated that the Veteran’s physical disabilities prevented him from activities such as lifting, carrying, stretching, bending or sitting. The February 2015 VA examination confirmed these limitations. Moreover, while the May 2011 VA examination found no functional impact of the Veteran’s headaches on his ability to work, the examiner made clear that this was due to the Veteran’s improved response with treatment, to include medication. The evidence indicates that the Veteran’s headaches were such that they caused very frequent prostrating and prolonged attacks productive of severe inadaptability. The Veteran’s lay statements are consistent with these findings. Although the Veteran indicated medication improves his symptoms, any amelioration from medication cannot be considered in determining the appropriate rating in this case. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (“the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria”). For these reasons, the Board finds that the Veteran’s service-connected disabilities are such that a TDIU is warranted from February 25, 2011 through March 26, 2015. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.