Citation Nr: 21015908 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-39 239 DATE: March 18, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to a rating in excess of 60 percent between July 1, 2015 and April 13, 2018 for prostate cancer is denied. REMANDED Entitlement to total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s sleep apnea began during active service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. 2. Between July 1, 2015 and April 13, 2018, the residual symptoms of the Veteran’s prostate cancer have been characterized as in remission, requiring the wearing of absorbent materials that must be changed more than four times per day, a daytime voiding interval between one and three hours, and awakening to void five or more times at night. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for a rating in excess of 60 percent between July 1, 2015 and April 13, 2018 for prostate cancer residuals have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3,105, 3.156, 3.159, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes (DC) 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to August 1975. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 and August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the Veteran’s claim for an increased rating for prostate cancer for the issuance of a supplemental statement of the case (SSOC). In September 2019, the RO granted a 100 percent rating for the Veteran’s prostate cancer, effective April 13, 2018. As this grant does not represent a total grant of benefits sought on appeal, the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In January 2021, the Board granted service connection for lymphedema of both legs as related to prostate cancer, which the RO rated as 20 percent disabling in a January 2021 rating decision. The Veteran has not challenged this rating; therefore, this claim is no longer before the Board. In the January 2021 Board decision, the Board also remanded the claims of service connection for sleep apnea and an increased rating for prostate cancer for consideration of evidence that was not considered by the RO. The claim of entitlement to a TDIU was remanded as inextricably intertwined with the other claims on appeal. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary (except for the claim for TDIU for the reasons explained below). Stegall v. West, 11 Vet. App. 268 (1998). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea The Veteran contends his sleep apnea is due to his active service, to include exposure to herbicide agents. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, VA laws and regulations provide that, if a Veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed to herbicide agents during such service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide agents. Brock v. Brown, 10 Vet. App. 155 (1997). The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, and he is presumed exposed to herbicide agents in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease, to include said exposure. The Veteran was diagnosed with sleep apnea by private sleep study in November 2016. The Veteran served in the Republic of Vietnam from October 1969 to October 1970. Thus, he is presumed exposed to herbicide agents. However, sleep apnea is not a listed condition under 38 C.F.R. § 3.309(e). Thus, he is not eligible for presumptive service connection for his sleep apnea due to herbicide exposure. However, pursuant to Combee, he may still prove service connection by way of a direct theory of entitlement. Service treatment records reveal no reports, treatment, or diagnosis of any sleep related concerns. Private treatment records show the Veteran was not diagnosed with sleep apnea until November 2016, decades after his separation from service. All medical records in file are negative for reports of sleep trouble since or proximate to active service. Further, medical and lay evidence does not reveal when the Veteran first noticed sleep apnea symptoms. The January 2020 VA examiner opined that the Veteran’s sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents. The rationale was that there was no indication that his condition was related to his active duty time, and there is no positive, scientific evidence of an association between sleep apnea and exposure to herbicide agents. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his sleep apnea is related to service. While the Veteran is competent to report having experienced symptoms of trouble sleeping prior to his diagnosis, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Id.; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board finds the January 2020 VA opinion is the most probative evidence in file. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to a rating in excess of 60 percent between July 1, 2015 and April 13, 2018 for prostate cancer The Veteran contends that his prostate cancer warrants a rating in excess of 60 percent prior to April 13, 2018. The Veteran was originally granted service connection for this condition in a June 2014 rating decision assigning a 100 percent rating effective November 12, 2013. The Veteran’s rating was decreased to 60 percent effective July 1, 2015, and later increased to 100 percent effective April 13, 2018 based on the date he began hormone therapy. As the Veteran was in receipt of a 100 percent rating for prostate cancer prior to July 1, 2015 and from April 13, 2018 forward, the issue on appeal is whether the Veteran is entitled to a rating in excess of 60 percent between July 1, 2015 and April 13, 2018. The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, Diagnostic Codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 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. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under DC 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and shall continue with a mandatory examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals of voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, DC 7528. In the case of prostate cancer residuals under 38 C.F.R. § 4.115a, a disability rating is assigned based on renal dysfunction and voiding dysfunction, including urinary frequency, obstructed voided, and urinary tract infections. The applicable criteria for a rating under 38 C.F.R. § 4.115a are: • Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. (60 percent maximum under voiding dysfunction) • Constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under diagnostic code 7101. (60 percent under renal dysfunction) • Persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. (80 percent under renal dysfunction) • Requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. (100 percent under renal dysfunction). 38 C.F.R. § 4.115a. As an initial matter, the Veteran does not contend, and the record does not show, renal dysfunction as a residual of prostate cancer. Therefore, the Board will turn to whether the Veteran’s prostate cancer residuals are entitled to a rating greater than 60 percent under the rating criteria for voiding dysfunction. November 2015 private medical records indicate the Veteran must change absorbent material eight times daily. The January 2016 VA examination indicates nocturia four to five times per night, enuresis once per month, daytime voiding every one to two hours, and voiding urgency, but no need for protective material. However, in March 2016 correspondence, the Veteran clarified that he changes absorbent materials eight times daily. The June 2018 VA examination indicates voiding dysfunction two to four times daily, nocturia five times per night, and urgency of bowel and bladder with occasional incontinence. The August 2019 VA examination indicates no renal dysfunction, and that he requires absorbent material to be changed two to four times per day, with daytime voiding frequency every two to three hours. Though VA examinations indicate the Veteran requires changing of absorbent material up to four times daily, considering the Veteran’s March 2016 statement and private medical records, the Board finds the Veteran’s condition requires changing absorbent materials eight times daily. Further, the evidence indicates a daytime voiding frequency of every one to three hours and voiding more than five times nightly. Accordingly, the Board finds that the Veteran’s prostate cancer residuals of voiding dysfunction are consistent with the 60 percent rating criteria under DC 7528, the maximum rating available under that DC. Further, there is no evidence of renal dysfunction to permit a rating greater than 60 percent. Accordingly, the Board finds that a preponderance of the evidence demonstrates that the Veteran’s prostate cancer residuals are adequately contemplated by the 60 percent rating criteria under DC 7528 for voiding dysfunction, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Therefore, a rating in excess of 60 percent between July 1, 2015 and April 13, 2018 for prostate cancer is denied. REASONS FOR REMAND Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends he became unable to work in March 2014 and has requested a TDIU rating for periods of unemployment since then. See November 2019 substantive appeal. TDIU 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 an 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). Here, the Veteran’s service-connected disabilities meet the schedular criteria set forth in § 4.16(a) for the entire period on appeal. The Veteran is in receipt of the following ratings: 0 percent each as of August 1975 for bilateral hearing loss, lacerated forehead, and left wrist burn scars; 10 percent each for residuals of fractured vertebra and residuals of fractured clavicle as of August 1975; 30 percent for posttraumatic stress disorder as of November 2011; 10 percent for tinnitus as of November 2011; 100 percent for prostate cancer as of November 12, 2013, 60 percent as of July 1, 2015, and 100 percent as of April 13, 2018; and 20 percent each for right leg lymphedema and left leg lymphedema as of May 3, 2018. His combined evaluation is 50 percent from November 2011, 100 percent from November 12, 2013, 80 percent from July 1, 2015, and 100 percent from April 13, 2018. Thus, the question for the Board is whether the Veteran’s multiple disabilities preclude him from obtaining or engaging in substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). However, the evidence of record is insufficient and inconsistent regarding the Veteran’s periods of unemployment, including whether the Veteran’s work as a self-employed pharmaceutical courier constitutes marginal employment, as contended by the Veteran. See May 2018 Vocational Assessment. For example, the Veteran reported earning approximately $2,000 per month in this position. See May 2018 VA 21-8940. However, the only proof of income in file is his 2017 tax returns showing a negative net income for the year. Therefore, on remand, an attempt to clarify the Veteran’s yearly income since 2014, including whether such employment constitutes marginal employment, must be undertaken. The matters are REMANDED for the following action: Obtain clarification from the Veteran regarding his annual income, particularly between 2014 to the present (to specifically include clarification regarding self-employment, including his pharmaceutical courier business). All actions to obtain the requested information should be documented fully in the claims file. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.