Citation Nr: 21012867 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-36 015 DATE: March 5, 2021 ORDER Entitlement to an initial compensable disability rating for obstructive sleep apnea (OSA) prior to December 20, 2018, is denied. Entitlement to a 100 percent disability rating for OSA since December 20, 2018, is granted. FINDINGS OF FACT 1. Prior to December 20, 2018, before and after the impact of posttraumatic stress disorder (PTSD) the Veteran’s OSA required the use of a CPAP or BiPAP machine, but did not exhibit chronic respiratory failure with carbon dioxide retention or cor pulmonale, or required tracheostomy. 2. Since December 20, 2018, OSA requires the use of a BiPAP and an O2 concentrator. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for OSA prior to December 20, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§3.102, 3.159, 3.310(b), 4.1, 4.22, 4.97, Diagnostic Code 6847. 2. The criteria for entitlement to a 100 percent disability rating for OSA since December 20, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§3.102, 3.159, 3.310(b), 4.1, 4.22, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1987 to June 1991. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2016 Decision Review Officer (DRO) decision of a Department of Veterans Affairs (VA) Regional Office (RO). This determination arose from the Veteran’s disagreement with an August 2014 rating decision. In October 2018, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In a February 2019 decision, the Board denied the Veteran’s claim for an initial compensable rating for OSA and granted an initial evaluation for 10 percent for hypertension. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, based on a Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board’s February 2019 decision regarding evaluation of sleep apnea and remanded for readjudication in compliance with the JMPR in January 2020. The Board in turn remanded the matter for further development in July 2020. That development having been completed; the case is again before the Board for adjudication. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran’s disagreement with the initial evaluation following the grant of service connection for OSA. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. All available and identified relevant records have been obtained. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in the July 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Importantly, in cases of aggravation, assigned ratings reflect the degree of disability over and above the pre-existing degree of disability. Therefore, when service connection based on aggravation is granted, VA must first determine the overall level of disability and then subtract from that the level of disability which existed prior to aggravation. The difference between the two represents the percent disability for the condition. If, however, the aggravated disability is found to be totally disabling, no reduction takes place. Similarly, if the degree of pre-existing disability cannot be determined, no reduction takes place. 38 C.F.R. § 4.22. The Veteran’s service-connected sleep apnea is assigned a 0 percent (noncompensable) rating under Diagnostic Code 6847, effective November 6, 2013. The current 0 percent (noncompensable) evaluation contemplates asymptomatic sleep apnea, but with documented sleep disorder breathing. A higher evaluation of 30 percent may be assigned for persistent daytime hypersomnolence. A 50 percent rating is assigned when the sleep apnea requires the use of a breathing assistance device such as CPAP machine. A maximum 100 percent rating is assigned for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy. The records reflected that the Veteran was first diagnosed with OSA in mid-1990’s and was placed on CPAP. Prior to his diagnosis, the Veteran exhibited loud snoring. In January 2009, the Veteran underwent a repeat overnight polysomnogram, which revealed significant OSA. Subsequently, the Veteran underwent a sleep study in April 2010 for complaints of worsening daytime sleepiness and was switched to a BiPAP machine. In May 2012, the Veteran submitted a sleep apnea disability questionnaire (DBQ) completed by a private doctor. The Veteran was diagnosed with obstructive and central sleep apnea. The Veteran was required the use of a breathing assistance device such as continuous positive airway pressure (CPAP) machine. The Veteran had other findings such as persistent daytime hypersomnolence attributable to his condition. He did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his sleep apnea. The examiner opined that the Veteran’s sleep apnea impacted his ability to work. He noted that the Veteran had residual sleepiness. On March 2013 DBQ, the Veteran was diagnosed with obstructive and central sleep apnea. The Veteran required the use of a breathing assistance device such as continuous positive airway pressure (CPAP) machine. The Veteran had other findings such as persistent daytime hypersomnolence attributable to his condition. He did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his sleep apnea. The examiner opined that the Veteran’s sleep apnea impacted his ability to work. He noted that the Veteran had persistent hypersomnia despite good compliance with his CPAP. In December 2013, the Veteran was afforded a VA examination. The Veteran was diagnosed with OSA. The Veteran reported that he used a BiPAP mask. He indicated that he had some improvement. Continuous medication was not required for control of a sleep disorder condition. The Veteran required the use of a breathing assistance device such as continuous positive airway pressure (CPAP) machine. The Veteran had other findings such as persistent daytime hypersomnolence attributable to his condition. He did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his sleep apnea. The examiner opined that the Veteran’s sleep apnea impacted his ability to work. The examiner noted that the Veteran’s condition caused a mild impact on his ability to work. He noted that he should be cautioned when driving a vehicle and operating dangerous machinery. A December 2018 VA treatment note documented that the Veteran was advised that nocturnal oxygen was ordered. A March 2019 sleep study indicated that the Veteran used a BiPAP and an O2 concentrator. In October 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with obstructive and central sleep apnea. He indicated that he had shortness of breath. He reported that he was diagnosed with asthma and was placed asthma medication. He indicated that he had a persistent cough which was worse when he was laying down. Continuous medication was not required for control of a sleep disorder condition. The Veteran required the use of a breathing assistance device such as continuous positive airway pressure (CPAP) machine. The Veteran had other findings such as persistent daytime hypersomnolence attributable to his condition. The Veteran required nocturnal oxygen for his sleep apnea. He had hypersomnolence, sleep disturbance, and he could not take naps in the afternoon. The examiner opined that the Veteran’s sleep apnea impacted his ability to work. The examiner noted that the Veteran had a physician excuse because long drives were not safe. He noted that the Veteran had difficulty focusing at work. Prior to December 20, 2018 Here, prior to December 20, 2018, the evidence demonstrates that the Veteran’s sleep apnea requires use of a CPAP machine (or related BiPAP). Thus, this level of severity meets the criteria for a 50 percent rating under Diagnostic Code 6847. See 38 C.F.R. § 4.97. Further, April 2010 sleep study, August 2012 DBQ, March 2013 DBQ, and December 2013 VA examination report demonstrate that the Veteran did not have chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy. The evidence of record for this period indicated that the Veteran’s sleep apnea required the use of a CPAP or BiPAP machine, and had since before November 6, 2013. Accordingly, the 50 percent evaluation is warranted since the initial diagnosis of sleep apnea in the mid-1990s, prior to diagnosis or service connection of a mental disorder. In the absence of evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a need for tracheostomy, no higher rating is warranted at any time. At worst, then, the pre- and post-aggravation levels have been equal throughout the period prior to December 2018. When deducting this baseline “pre-aggravation” amount (50 percent) from the current 50 percent level of severity, a 0 percent (noncompensable rating), but no higher, disability rating—pursuant to 38 C.F.R. § 4.22—is warranted for the Veteran’s sleep apnea prior to December 20, 2018. Since December 20, 2018 Since December 20, 2018 the evidence demonstrates that the Veteran’s sleep apnea requires use of a BiPAP machine and an O2 concentrator. A December 2018 VA treatment note documented that nocturnal oxygen was ordered for his OSA; prior to that date, oxygen was not required. Furthermore, the March 2019 sleep study demonstrated that the Veteran was on a BiPAP machine and an O2 concentrator for his condition. Therefore, the Veteran is warranted a 100 percent disability rating after December 20, 2018. In an October 2020 rating decision, the RO found that the severity of the Veteran’s OSA meet the criteria for a 100 percent rating. The RO found, apparently based on the need for oxygen and low saturation rates, that the Veteran had chronic respiratory failure or its equivalent. While the Veteran has not been diagnosed with chronic respiratory failure, the Board agrees that the need for O2 concentrator suffices to meet the criteria. The RO also found that the baseline disability level of 50 percent should be deducted from the assignable 100 percent rating, resulting in a payable disability level of 50 percent evaluation for compensation purposes. However, 38 C.F.R. § 4.22 provides that, “if the disability is total (100 percent) [,] no deduction [should] be made.” Accordingly, as a matter of law, the Veteran is entitled to a 100 percent rating for his OSA, without deductions. Therefore, award of the entire 100 percent rating for OSA after December 20, 2018 is warranted. The Board needs not discuss entitlement to special monthly compensation housebound as the Veteran is in receipt of such benefit from prior to the award of 100 percent for OSA. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.