Citation Nr: 21007261 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-51 175 DATE: February 9, 2021 ORDER The claim for service connection for sleep apnea, including secondary to service-connected posttraumatic stress disorder (PTSD), is denied. The claim for a total disability rating based on individual unemployability (TDIU) as due to service-connected disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury or disease, or was caused or aggravated by service-connected PTSD. 2. The schedular criteria for a TDIU are not met. The evidence does not demonstrate that the Veteran is incapable of securing and maintaining substantially gainful employment due to service-connected disability, as to have warranted extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for sleep apnea, including secondary to service-connected PTSD. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria are not met for a TDIU. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from September 1976 to November 1997. In November 2018, the Board remanded the case so additional VA records could be obtained and so an opinion could be provided regarding the Veteran’s sleep apnea claim. An October 2019 VA opinion addressed secondary service connection. In August 2020, the case was remanded to obtain an opinion regarding direct service connection for sleep apnea, and so the Veteran could submit a VA Form 21-8940 to support his TDIU claim. An opinion regarding sleep apnea was obtained in September 2020. The opinions are adequate because they are based on a complete review of the claims file, including discussion of a treatise submitted by the Veteran, and because the secondary service connection opinion addressed both causation and aggravation. The examiners provided rationales for their opinions. In September 2020, the Agency of Original Jurisdiction (AOJ) sent the Veteran a VA Form 21-8940 and he did not return it. 1. The claim for service connection for sleep apnea including as secondary to PTSD is denied. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). Basic requirements for service connection are: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. VA law further permits service connection on a secondary basis. Secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis further applies when shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). Having reviewed the relevant evidence and findings in this case, the preponderance of the evidence does not support the claim on a direct or secondary basis. The main theory of consideration is secondary service connection, according to the Veteran’s assertions, and considering also that sleep apnea was diagnosed post-service. The Veteran asserts that his OSA was caused or aggravated by his PTSD. In furtherance of this the Veteran provided a copy of a 2012 medical journal study which described a correlation between development of sleep apnea and Veterans who had obtained treatment for diagnosed PTSD, and described some of the potential contributing factors such as more frequent use of pain relief medications and sedatives taken for PTSD symptoms that then led to a sleep condition. Those VA examiners’ opinions which address the subject of secondary causation are as follows, first June 2013 VA examination report. The Veteran’s sleep apnea is not proximately caused by, the result of or aggravated by his posttraumatic stress disorder. Rationale: Medical literature review, medical records review, clinical experience. There is no objective data to support the Veteran’s claim. Medical literature review: Obstructive sleep apnea-hypopnea is characterized by recurrent episodes of upper airway collapse and obstruction during sleep. These episodes of obstruction are associated with recurrent oxyhemoglobin desaturation and arousals from sleep. The term obstructive sleep apnea-hypopnea syndrome (OSAHS) is frequently used when the episodes are associated with excessive daytime sleepiness (EDS). OSAHS is a common disease. Pathophysiology: The upper airway is a compliant tube and is therefore subject to collapse. Most patients with OSAHS demonstrate upper airway obstruction, either at the level of the soft palate (nasopharynx) or at the level of the tongue (oropharynx). Anatomic factors, such as enlarged tonsils, macroglossia, or abnormal positioning of the maxilla and mandible, decrease the cross-sectional area of the upper airway and/or increase the pressure surrounding the airway, both of which predispose the airway to collapse. Most patients with OSAH are males, 18 to 60 years old. Their physical exam is frequently normal, except for obesity (body-mass index >30) and, often but not always, a crowded oropharyngeal airway. The Board remanded the case so the Veteran’s treatise article could be considered. In October 2019, a VA examiner reviewed the treatise article submitted by the Veteran. She provided the following opinion: The Veteran’s sleep apnea was less likely as not proximately due to or the result of his PTSD. Rationale: There is no clinical research that supports the conclusion that PTSD is the cause of sleep apnea. Current published medical studies have attempted to define a direct relationship between the development of sleep disturbance and traumatic event exposure and while a possible association has been hypothesized, a precise mechanism and the interdependence roles of these two conditions cannot be explained. It is also important to emphasize that any articles that find or suggest “associations” between PTSD and pathologic conditions must be interpreted with caution –– association does not prove a cause effect relationship, and may just represent a coincident finding. Additionally, it is well documented that there are overlapping symptoms of PTSD and OSA such as chronic trouble sleeping; however, a causative link between both diagnoses cannot be made. As part of PTSD, a patient may exhibit chronic trouble sleeping due to hyper-arousal symptoms of anxiety such as anxiety state and hypervigilance as well as sleep disruption due to nightmares. These symptoms are distinct from OSA. Given the current published data for PTSD and obstructive sleep apnea, there is no definitive evidence for cause and effect. In addition, with regard to any aggravation, there is no evidence that PTSD has aggravated his sleep apnea. Several studies have supported the conclusion that there is no clear-cut evidence to support the finding that obstructive sleep apnea is aggravated by PTSD. Obstructive sleep apnea is a condition with a clear and specific etiology which is caused by obstruction of the upper airways and is predominantly found in overweight individuals. PTSD does not cause the pathophysiology associated with OSA and there is no evidence to support aggravation. An addendum opinion was provided in September 2020, where the examiner addressed both direct and secondary service connection. Regarding secondary service connection, the examiner stated that she agreed with the October 2019 VA examiner. She then explained, It is important to point out that causation indicates that one event is the result of the occurrence of the other event, i.e., there is a causal relationship between the two events. In scientific study, causality must be observable, predictable, and reproducible. Review of current medical literature and research shows no causal relationship, physiologic or biomechanical, between psychiatric disorder and the physiologic condition of sleep apnea. Sleep apnea is a physiologic disorder, as opposed to a psychiatric disorder, and its treatment is by physical means. OSA is found in hundreds of Americans and bears no relationship to the Veteran’s psychiatric disorder either in terms of causation or aggravation. OSA occurs in Veterans with PTSD, as well as in Veterans without PTSD and, indeed, widely in the general population. While some medical studies have attempted to define a direct relationship between development of sleep disturbance and psychiatric illness, as of now, none have shown definitive evidence for a cause and effect relationship. Obstructive sleep apnea is caused by obstruction of the upper airways, either at the level of the soft palate (nasopharynx) or at the level of the tongue (oropharynx). Per UpToDate, definite risk factors for OSA include obesity, craniofacial abnormalities, and upper airway soft tissue abnormalities. Psychiatric disorders do not cause the physiological conditions that are connected with sleep apnea. Germain and associates attempted to define a link between the emotional response in PTSD and sleep-stage disturbances by highlighting a potential key role of the amygdala and medial prefrontal cortex. However, the investigators concluded that further research was needed to fully define this relationship. According to a widely-utilized, literature-based medical reference source, “Up-To-Date,” mood disorders do not have a causal effect to the development of obstructive sleep apnea. According to medical studies, the prevalence of OSA progressively increases as the body mass index and associated markers (e.g., neck circumference, waist-to-hip ratio) increase. Obesity is the best documented risk factor for OSA. It is important to point out that obesity is generally caused by excessive caloric intake and reduced caloric expenditure–that is–it is a personal choice. The Veteran’s OSA is likely due to his body habitus. Regarding any aggravation, there is no evidence that his mental disorder has aggravated his sleep apnea beyond the natural progression. As to direct service connection, in November 1990, the Service Treatment Records (STRs) documented the Veteran reported some trouble sleeping since returning from being stationed in Saudi Arabia and that report notated insomnia. Apart from this sleep apnea was not diagnosed or other issues. The Veteran had a nasal septoplasty during service in November 1993 which is clearly of relevance as it bears on the claimed condition. According to the Veteran the condition of sleep apnea was first diagnosed in approximately 2005 at a private clinic and was confirmed by sleep study. Following this, a September 2010 post-service private medical consult states that the issue of a nasal obstruction had not improved following the septoplasty. The obstruction was severe enough that it affected his sleep at night. He had been given a CPAP as the commonly known means of treatment for sleep apnea. Regarding direct service connection, the August 2020 examiner concluded that the condition claimed was less likely than not (less than 50 percent probability) incurred in, caused by or aggravated beyond the natural progression by any incident of service to include septoplasty procedure during service. The examiner explained that that during service, the Veteran was evaluated for a nose problem and received medical treatment, nasal septoplasty, to correct the problem. The examiner stated [t]here is no evidence of permanent residual or chronic disability from this surgery as evidenced by the silence of the records regarding any further nasal complaint or treatment for the remainder of his active service. Treatment records following service are negative for any evidence of a nasal condition or residuals of septoplasty in any close proximity to his retirement. The examiner also noted that post service records were negative for residuals of septoplasty. The examiner addressed the Veteran’s lay assertion that he had problems sleeping since his service in Saudi Arabia. The examiner noted that in October 2000, the Veteran reported “poor sleep with bad dreams of death and feeling threatened.” Mental health clinician diagnosed “PTSD with depression.” The examiner explained, [a]ccording to the records, the veteran related in his personal hearing conducted on July 27, 2000 that the symptoms of PTSD and anxiety first became manifest while on active duty. He related that after he came back from the Gulf War the symptoms escalated. The Veteran related that he has problems sleeping dreams of people being killed, and saw thousands of people injured. The examiner concluded, “the Veteran is service-connected for PTSD and is already receiving disability benefits. Therefore, subjectively reported ‘problem sleeping since serving in Saudi Arabia’ is accounted for by the other diagnosis.” Given these opinions of record, and that they have a clear medical rationale and grounding in case details, the most supported outcome is that a causation relationship to service-connected disability is not shown here. The condition of sleep apnea is indicated to be distinguishable as a physical disorder from the issues associated with service-connected psychiatric disorder. The second and third VA examiners in particularly explained a distinction between symptomatology of PTSD, and the more physical and anatomical dimension of factors that led to sleep apnea which was a partial tendency to have obstructive airways symptoms. More generally too, they apparently considered sleep apnea and PTSD more commonly associated, as reported in some scientific studies, but found no causal correlation. They did not find any connection to the nasal obstruction issue in service, a matter which while not preceding service, did result in a septoplasty in 1993, but which according to the third VA examiner, had not resulted in any residual condition or long-term medical issue pertaining to the respiratory system. In support of his claim, the Veteran submitted an Internet article called “Sleep Apnea Elevated in Veterans with PTSD.” The article stated that Veterans with PTSD have sleep problems, and that the rate of having sleep apnea was higher among Veterans who had PTSD than the general population. Generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The exception to this competency rule is when the medical treatise information, where “standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Wallin v. West, 11 Vet. App. 509, 513 (1998). This article was not accompanied by a medical opinion that supports the claim. In this case there is no supporting medical evidence that the general principles cited in the articles relate to the specific situation of the Veteran. Mattern v. West, 12 Vet. App. 222, 228 (1999). The article submitted by the Veteran is less probative by than other medical evidence of record because it does not address the specific facts of this case. Sacks v. West, 11 Vet. App. 314, 317 (1998). The medical opinions are well-reasoned and reflect a thorough review of the record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). There is sufficient indication to reflect that the causation requirement is not met. This includes on a direct basis and any secondary connection to already service-connected PTSD. For these reasons, the preponderance of the evidence weighs against the claim for service connection for sleep apnea. Under these circumstances, VA’s benefit-of-the-doubt doctrine does not apply, and the claim is being denied. 2. The claim for TDIU is denied. Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the individual is unable to secure and maintain substantially gainful employment because of the severity of her service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). The current list of the Veteran’s service-connected disabilities is as follows: (1) PTSD, rated 30 percent; (2) lumbosacral disc disease with left leg sciatic, rated 10 percent; (3) hypertension, rated 10 percent; (4) hearing loss, rated noncompensable (0 percent); (5) right inguinal hernia repair, noncompensable. According to the current disability compensation scheme, there is not a single service-connected disability rated at 60 percent, or, service-connected disabilities combined at a total of 70 percent with at least one rated a minimum of 40 percent. The criteria for consideration of a schedular TDIU have not been met. If a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extraschedular basis under § 4.16(b) if it is established he is indeed unemployable on account of service-connected disabilities. 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. If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is “[in]capable of performing the physical and mental acts required by employment,” and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In addition, “marginal employment” shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Where the claimant’s working capacity might be limited to “marginal employment,” the question of whether marginal employment must be addressed including where the Veteran is not presently employed. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). “Substantially gainful employment” for TDIU purposes is met where the annual earned income exceeds the poverty threshold for “one person,” irrespective of the number of hours or days actually worked and without regard to any prior income history. Faust, 13 Vet. App. 342. The record does not demonstrate that the Veteran is incapable of substantially gainful employment as the consequence of service-connected disability. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. At his October 2019 VA examination, the Veteran stated that he stopped working as a mechanic because of his back disability. The Veteran reported that he used work as a mechanic but stopped due to needing to stand for long periods. The examiner stated that the condition had no impact on the Veteran’s ability to work. An October 2007 VA treatment record noted that the Veteran had worked a “maintenance job” but also that he had a “Hyatt hotel job.” The duties he performed at these jobs were not described. A February 2006 VA record noted that the Veteran was upset at his performance appraisal because he was told by his supervisor that he was “doing a wonderful job,” but that he received the same pay raise as everyone else. VA treatment records from 2004 though 2006 noted that the Veteran was working at a hotel and that he felt his psychiatric symptoms interfered with his work but he remained employed. Apart from this, even without extensive other recent VA examinations of record on other conditions, outpatient records state little concern as to employability, nor is there report of the same. The Board remanded this case in part for the Veteran to submit a VA Form 21-8940 to provide information about his educational and occupational background, including descriptions of the types of jobs he had, the amount of money he earned, and his highest level of education. He did not provide this information. Therefore the record does not contain evidence demonstrating marginal employment or a description of the Veteran’s previous jobs and education. A claimant has the responsibility to present and support a claim for benefits under laws administered by VA. While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). The record does not contain information describing the Veteran’s occupational and educational history. Therefore the Board does not have information needed to determine what his physical and mental abilities are in context of his educational and occupational history. The Veteran was afforded an opportunity to provide this information but did not do so. For these reasons, the preponderance of the evidence weighs against the TDIU claim, remand for referral for consideration of an extraschedular TDIU is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.