Citation Nr: 21011381 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-44 439 DATE: March 1, 2021 ORDER New and material evidence has been received, and the claim for entitlement to service connection for obstructive sleep apnea (OSA) is reopened. Entitlement to service connection for OSA is granted. Entitlement to an increased rating in excess of 10 percent for hypertension (HTN) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Since the last, final, May 2010 rating decision concerning the OSA claim, evidence has been added to the record that was not previously considered by agency decisionmakers and which relates to a previously unestablished element of the claim; this evidence supports the finding that the Veteran’s OSA is etiologically related to active service. 2. The Veteran’s HTN has not been productive of diastolic pressure predominantly 110, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for OSA. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 10 percent for HTN have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.31, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to April 2006. This appeal comes before the Board of Veterans’ Appeals (Board) from May 2014 and March 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. This appeal was previously before the Board in January 2020 when it was remanded for further development to include updating VA treatment records and readjudication of the issues on appeal. The Board notes additional VA treatment records were added to the claims file in January and August 2020. A supplemental statement of the case (SSOC) was issued in September 2020. The Board finds there was substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The matter has returned to the Board for further appellate review The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such is raised by the Veteran or the record. As such, the issue of entitlement to TDIU has been added above and will be addressed in the REMAND section below. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). New and material evidence The Board notes that evidence received since the unappealed May 2010 rating decision denying service connection for OSA includes two private medical opinions dated in August 2019 and January 2021 and a November 2019 VA sleep apnea examination, all noting a positive etiology between the Veteran’s OSA and his active service. This newly received evidence is relevant because it specifically concerns the etiology of the condition being claimed, it is new because it was not previously considered in the May 2010 decision, and it is material because it pertains to unestablished facts necessary to substantiate the claim of entitlement to service connection for OSA. For the reasons noted above, the Board finds this claim may be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for obstructive sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board acknowledges the Veteran has a current diagnosis of OSA. See November 2019 VA sleep apnea examination confirming a diagnosis from April 2008. Therefore, the only question for the Board is whether the Veteran’s OSA began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has asserted three theories for service connection for his OSA: direct connection caused by a change in circadian rhythms during active service (see June 2015 statement), secondary connection from weight gain caused by disturbances in motivation and mood associated with his service-connected PTSD (see August 2019 statement), and secondary connection from his service-connected HTN (see January 2018 correspondence). Post-service treatment records include an April 2009 VA neurology consult that noted Veteran had symptoms of sleep apnea and loud snoring. An April 2009 VA sleep study report that noted a diagnosis of severe OSA. A June 2009 VA respiratory therapy record noted the recommended use of a continuous positive airway pressure (CPAP) machine. The Board notes additional treatment records dated throughout the appeal noting OSA in the medical history section and other records noting the Veteran is overweight. The claims file also includes a several statements provided by the Veteran, his family, and his friends, indicating he exhibited symptoms associated with sleep apnea during active service. The claims file includes an April 2014 VA Gulf War General Medical Examination that included a sleep apnea examination. The report notes the examiner confirmed a diagnosis of OSA from 2009. Symptoms included excessive snoring and choking during the night. The examiner noted the Veteran’s breathing condition requires use of a CPAP. VA requested a medical opinion in October 2015. That same month a VA doctor opined that the Veteran’s OSA is not as least as likely as not incurred in or caused by (the) reports of loud heavy snoring and cessation of breathing reported by family members as well as service members stationed with the veteran. As a rationale, the examiner noted there is no medical documentation regarding OSA prior to 2009. In addition, the lay statements provided by family and fellow service members indicated this condition runs in the family. The examiner noted that notwithstanding the indication that this condition preexisted service, there is no medical documentation to show a preexisting condition. The same examiner also opined the Veteran’s OSA was less likely than not (less than 50 percent probability) directly incurred in or caused by the claimed in-service injury, event or illness. As a rationale, the examiner noted there is no medical evidence that the Veteran developed OSA during active service. The examiner noted the Veteran weighed 225 lbs. on his separation exam and denied “frequent trouble sleeping” on his medical history form. He was noted to weigh 240 lbs. in February 2009, just prior to being diagnosed with OSA. The examiner concluded the Veteran’s OSA was more likely related to his gain in weight. However, he also reported medical literature include age, gender, obesity, and craniofacial or upper airway soft tissue abnormalities as known OSA risk factors. The claims file also includes an August 2019 sleep apnea disability benefits questionnaire and nexus opinion submitted by the Veteran. The examiner noted a diagnosis of OSA from April 2008. Symptoms noted as persistent daytime hypersomnolence, breathing pauses while sleeping, snoring, and trouble sleeping with frequent awakenings. The Veteran reported significant weight gain due to inactivity caused by his service-connected PTSD, lumbar spine degenerative disc disease, and right shoulder arthritis. CPAP has been prescribed. The examiner provided three medical opinions. The examiner opined it is at least as likely as not that the Veteran’s weight gain and obesity is due to and/or related to his service-connected PTSD, lumbar spine degenerative disc disease, and right shoulder degenerative arthritis. The examiner also opined it is as likely as not that the Veteran’s OSA is secondary to, related to, and/or aggravated by the weight gain and obesity from the service-connected PTSD, lumbar spine degenerative disc disease, and right shoulder degenerative arthritis. Finally, the examiner opined it is as least as likely as not that without the weight gain and obesity, the Veteran’s OSA would not have occurred. As a rationale for all three opinions, the examiner noted the Veteran has a current diagnosis of OSA with an apnea hypopnea index (AHI) of 52, the Veteran is currently service connected for the issues noted above, and the Veteran experienced progressive weight gain, going from 170 pounds (lbs.) at entrance to 240 lbs. at the time of his sleep study (2 years after separation). The examiner provided extensive medical literature to support her rationale based on inter-related pathopsychophysiological mechanisms and processes associated with the Veteran’s mental and musculoskeletal issues and his weight gain. In a November 2019 VA sleep apnea examination, the examiner confirmed a diagnosis of OSA from April 2008. The use of a CPAP is noted. In the attached medical opinion, the examiner opined the Veteran’s OSA was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that Veteran weighed 225 lbs. at the time of the separation examination and two years later weighed 240 lbs. and was diagnosed with OSA. The examiner concluded the Veteran’s OSA, is at least as likely as not incurred in or caused by obesity during service. The same examiner opined that the Veteran’s OSA was less likely than not, proximately due to or the result of the Veteran’s service-connected conditions. As a rationale, the examiner noted that there is no anatomical, physiological, or neurological correlation with sleep apnea and service-connected conditions. The claims file includes a February 2020 private nexus opinion, received by VA in January 2021, wherein the examiner confirmed a diagnosis of OSA that required use of a CPAP. The examiner opined it is as least as likely as not that the Veteran’s OSA is secondary to, related to, and/or aggravated by his service-connected disabilities to include PTSD, lumbar spine degenerative disc disease, and right shoulder degenerative arthritis with subsequent sleep disturbance and weight gain/obesity. As a rationale, the examiner noted that the Veteran has current diagnoses for OSA and PTSD, and further that medical literature notes a connection between OSA and PTSD. A thorough review of the Veteran’s STRs shows that the Veteran’s March 1986 Report of Medical Examination (RME) for enlistment is silent for OSA or any respiratory issues and noted the Veteran weighed 160 lbs. at entrance. A September 2000 RME for re-enlistment is silent for OSA or any respiratory issues and noted the Veteran weighed 197 lbs. A January 2006 RME for retirement is silent for OSA or any respiratory issues and noted the Veteran weighed 225 lbs. Additionally, there is a notation in the separation RME indicating the Veteran was obese. Based on a review of the record, the Board finds that the preponderance of the evidence supports a direct link between OSA and service, particularly in light of the November 2019 VA examination nexus opinion. The evidence is also in equipoise as to whether there is a secondary link between OSA and other service-connected disabilities, and any doubt is to be resolved in the Veteran’s favor. The claim is accordingly granted. 3. Entitlement to an increased rating in excess of 10 percent for HTN The Veteran’s HTN is currently rated as 10 percent disabling under DC 7101. The Veteran asserts his HTN is more severe than the currently assigned 10 percent rating. See November 2017 VA Form 9 Formal Appeal. Following a thorough review of the claims file, the Board finds a rating in excess of 10 percent is not warranted. A minimum compensable evaluation of 10 percent is available for HTN under 38 C.F.R. § 4.104, DC 7101, where the diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more or where a veteran has a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. The next higher evaluation of 20 percent disabling is available for hypertension manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Even higher ratings are warranted for greater degrees of symptomatology. The Veteran contends that a higher rating is warranted. However, the Board notes that the claims file is entirely devoid of evidence of systolic pressure at or above 200, or diastolic pressure at or above 110. The applicable diagnostic criteria for a 20 percent rating do not contemplate any other symptoms. There accordingly exists no basis for an underlying HTN disability rating in excess of 10 percent. 38 C.F.R. § 4.71, DC 7101. The appeal to this extent is denied. REMAND Assertions made in a September 2020 Statement in Support of Claim by the Veteran’s spouse indicate that the Veteran has been unemployed since 2017. The Board notes that the Veteran has not yet been provided with appropriate notice of the criteria for an award of TDIU, and such notice must be furnished to him on remand. The Board also notes that the pending rating decision for OSA, as noted above, could have an impact on the grant of entitlement to TDIU. A remand of the TDIU claim is thus required pending the rating decision. This matter is REMANDED for the following action: Once a rating for OSA has been assigned, furnish the Veteran a 38 C.F.R. § 3.159(b) notice letter addressing the claim for entitlement to TDIU. The Veteran should be allowed a reasonable period in which to respond; any development suggested by his response must be accomplished. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.