Citation Nr: 21010818 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-09 246 DATE: February 25, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to September 19, 2016 is denied. Entitlement to a TDIU for the period after September 19, 2016 is dismissed. FINDINGS OF FACT 1. The objective medical evidence fails to show that the Veteran’s sleep apnea was caused by an event, injury or illness during active service, or is proximately due to, the result of, or permanently made worse beyond its natural progression by his service-connected disabilities or the medications used to treat them. 2. The evidence of record fails to show that the Veteran's service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation for the period prior to September 19, 2016. 3. As of September 19, 2016, the Veteran was awarded a 100 percent total rating along with special monthly compensation (SMC) under 38 U.S.C. § 1114(s) during the applicable time period, and the issue of entitlement to TDIU after September 19, 2016 is therefore rendered moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. Prior to September 19, 2016, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) were not been met. 3. As of September 19, 2016, the issue of entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1982 to December 1993. In a December 2012 decision, in pertinent part, the Board reopened the Veteran’s claim for service connection for sleep apnea and found that, under Rice v. Shinseki, 22 Vet. App. 447 (2009), the issue of entitlement to a TDIU had been raised by the record (in conjunction with the pending increased rating for bilateral hearing loss). In November 2019, the Board remanded the issues of service connection for sleep apnea and TDIU for further development. In November 2020, the Board again remanded the issues for further development in compliance with its November 2019 remand. The case has been returned to the Board for appellate consideration and the Board finds that there has been substantial compliance with its prior remands and, therefore, it may proceed with a determination on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or permanently made worse beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran seeks service connection for sleep apnea, contending that onset of symptoms was during active duty. Alternatively, he has contended that his service-connected disabilities as well as medication prescribed to treat them may have caused or aggravated his sleep apnea. VA medical records show that in February 2009 the Veteran was referred for a sleep apnea evaluation due to increased snoring and daytime sleepiness. He was diagnosed with obstructive sleep apnea in May 2009. In a March 2013 statement in support of claim, the Veteran’s wife stated that the Veteran had been struggling with being tired all the time. In a March 2013 statement in support of claim, the Veteran stated that he “was unable to control a sleeping cycle” and along with a bilateral eye disorder he “was having a hard time,” which was why he left active duty service. In an October 2016 letter, a friend stated that the Veteran’s wife reported that some nights the Veteran snored so loud that it was unbearable, that he stopped breathing in his sleep, and sometimes woke up in a cold sweat and would reach for his weapon as if still on the battlefield. The Board notes that the Veteran is service connected for posttraumatic stress disorder (PTSD), to include major depressive disorder, effective October 7, 2016. During a February 2017 VA examination for PTSD, the Veteran reported that over a seven-month deployment they constantly worked at night, which resulted in loss of sleep. He reported frequent nightmares of being back in the military. VA medical records reveal that in 2017 the Veteran was prescribed prazosin for nightmares. In a July 2018 informed consent provided by his VA treatment provider when prescribed opioids for his knee pain, it was indicated that long-term use of opioids is a known risk factor of sleep apnea. The Board notes that the Veteran is service connected for right and left knee disabilities. During a March 2019 VA examination for sleep apnea, the Veteran reported that symptoms of sleep apnea began during active duty service with snoring, choking in his sleep, and feeling tired during the day. The examiner opined that it was less likely than not that the Veteran’s sleep apnea was related to his military service because symptoms were not noted during service and a diagnosis of sleep apnea was not recorded until many years after service. In its November 2019 remand, the Board found the March 2019 VA medical opinion not fully adequate for rating and remanded for a new medical opinion. The opinion does however, provide some evidence on the issue. In a January 2020 VA opinion, the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by active duty service. As rationale, she stated that the evidence did not contain any symptoms related to sleep apnea during service, or until years after service in approximately 2001. The examiner also opined that the Veteran’s sleep apnea was less likely than not related to his service-connected disabilities; however, as rationale, the examiner merely stated that the Veteran did not have a diagnosis of diabetes. Again, the Board found in a November 2020 decision that this medical opinion was not fully adequate and remanded the issue for a new medical opinion properly addressing secondary service connection to include the use of medication to treat the Veteran’s service-connected disabilities. Again, the opinion does offer some evidence on the matter at issue. Pursuant to the November 2020 Board remand, the Veteran was afforded another VA examination for sleep apnea in December 2020. The examiner opined that it is less likely than not that the Veteran’s sleep apnea is proximately due to or aggravated by his service-connected disabilities, to include the medications used to treat those conditions. The examiner explained that the Veteran’s obstructive sleep apnea is due to obstruction of the upper airways, associated with apneic episodes. He stated that the Veteran’s service-connected disabilities, to include bilateral knee degenerative joint disease, bilateral bunionectomies, finger conditions, hearing loss with tinnitus, right shoulder condition, eczema, and PTSD do not contribute to his sleep apnea in terms of cause or aggravation in any way, to include the use of medications used to treat these conditions. Moreover, he noted that the medical literature does not demonstrates that any of his service-connected disabilities impact obstructive sleep apnea in any way, and any such medications used to treat those disabilities do not impact the actual mechanism of obstructive sleep apnea. The Board finds the December 2020 VA examination to be probative and adequate for rating purposes as the examiner reviewed the contents of the Veteran's claims file and provided a detailed rationale addressing secondary service connection to include the effect of medications, referring to symptoms reported by the Veteran as well as medical literature accepted in the field of sleep medicine. The Board has carefully reviewed the lay evidence of record. While the Veteran has reported that his sleep apnea symptoms have been present since service, and alternatively, his symptoms have been aggravated by medications for his service-connected disabilities, this is not found to be probative in light of the other evidence of record. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to sleep apnea, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159(a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, there is no medical evidence of record to corroborate the Veteran’s statements that symptoms began during service. Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to determine the connection of current disabilities with service-related events, injuries or illnesses. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Further, the record discloses objective evidence of obstructive sleep apnea, but only after a considerable period following the Veteran's active duty service. A "prolonged period without medical complaint" of the disorder on appeal is a factor the Board will consider in its determination of service connection. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). For these reasons and based on the objective medical evidence, the Board finds that the Veteran's sleep apnea is not caused by an event, injury or illness during active service, nor is it proximately due to, the result of or permanently made worse beyond its natural progression by service-connected disabilities or related medications. This is consistent with all the recorded opinions on file. Consequently, service connection, direct or secondary, has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 19, 2016 Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). On June 17, 2013, VA released a Fast Letter, (which is binding on the Originating Agency, but not the Board.) The stated purpose of which was "to revise and clarify VA procedures relating to claims for total disability ratings based on individual unemployability (TDIU)." The changes noted included the following: "VA will require the claimant complete and submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to substantiate the claim of TDIU"; "VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required forms or evidence." Under the heading "Requirement for VA Forms 21-8940 and 21-4192," the following was stated: If a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU the Veteran must complete a VA Form 21-8940, and the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied. The form is significant for a claim of entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to TDIU. The Board may be able to determine this information by other means, but the form provides a central location. Here, the Board found in a December 2012 remand that the Veteran raised the issue of unemployability due to his service-connected disabilities during an October 2008 VA examination. In May 2019, the Regional Office (RO) sent the Veteran a development letter along with a VA Form 21-8940 with instructions to complete and return the form. To date, the Veteran has not completed or returned this form, nor has he provided any additional information regarding his employment or lack thereof. Subsequent Supplemental Statements of the Case (SSOCs) in September 2019, June 2020, and December 2020 denied the claim for TDIU due to the Veteran’s failure to provide the requested information. The Board acknowledges that there is evidence to suggest occupational impairment during the period prior to September 19, 2016, which is reflected in the Veteran's disability ratings assigned during that time. However, as the Veteran has not completed and returned a VA Form 21-8940, the Board is otherwise unable to evaluate his TDIU claim and find necessary information to make a proper determination as to whether he was unemployable for purposes of a TDIU during the time in question. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Therefore, the Board is unable to make a finding that the Veteran was unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities for the period prior to September 19, 2016. Accordingly, a TDIU must be denied. 3. Entitlement to a TDIU for the period after September 19, 2016 Further, the Board notes that the Veteran is in receipt of a 100 percent combined schedular rating as of September 19, 2016. A TDIU rating is contingent on the schedular rating being less than total. 38 C.F.R. § 4.16(a). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. In this case, the Veteran's TDIU is not predicated on a single disability but is predicated on multiple service-connected disabilities. Specifically, the grant of entitlement to TDIU is based on the cumulative symptomatology associated with the Veteran's service-connected disabilities. The Board notes that during the period of September 19, 2016 to November 1, 2017, the Veteran was properly granted special monthly compensation under 38 U.S.C. § 1114(s) when he had a temporary 100 percent evaluation for his right knee disability as well as an additional 60 percent evaluation for nummular eczema. During the remaining period on appeal, 38 U.S.C. § 1114(s) is not applicable.   The issue of entitlement to TDIU as of September 19, 2016 is considered moot, as the Veteran is already in receipt of a combined schedular evaluation of 100 percent during those periods as well as SMC under U.S.C. § 1114(s) when applicable. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.