Citation Nr: 21021944 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-09 116 DATE: April 14, 2021 ORDER Compensation under the provisions of 38 C.F.R. § 1151 for obstructive sleep apnea is denied. Service connection for obstructive sleep apnea is denied. REMANDED Entitlement to an initial rating in excess of 10 percent prior to September 30, 2009, in excess of 30 percent from September 30, 2009, to May 30, 2012, and in excess of 70 percent thereafter for dysthymic disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s obstructive sleep apnea is not shown to be proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program under Chapter 31. 2. The Veteran’s obstructive sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 C.F.R. § 1151 for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to June 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2010 and November 2014 by a Department of Veterans Affairs (VA) Regional Office. In June 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2018 and September 2020, the Board, in pertinent part, remanded the issues on appeal, as well as claims for compensation under the provisions of 38 C.F.R. § 1151 for a right elbow, right shoulder, and low back disorders and entitlement to service connection for a low back disorder. In a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted compensation for lateral epicondylitis of the right elbow, bicipital tendonitis, and limitation of pronation of the right forearm under 38 U.S.C. § 1151 and service connection for lumbosacral strain. As such awards constitute full grants of the benefits sought on appeal in regard to such issues, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The remaining issues now return for further appellate review. 1. Entitlement to compensation under the provisions of 38 C.F.R. § 1151 for obstructive sleep apnea. 2. Entitlement to service connection for obstructive sleep apnea. The Veteran contends he has obstructive sleep apnea due to his participation in a vocational rehabilitation program from February 2011 to January 2016. In the alternative, he reports that he learned of his snoring soon after he was discharged from service and, thus, claims service connection on a direct basis. See September 2019 VA examination report. A veteran who suffers a qualifying additional disability or death is entitled to compensation for the additional disability “in the same manner as if such additional disability...were service-connected,” if the additional disability was not the result of willful misconduct. 38 U.S.C. § 1151(a). In order for such disability to be deemed a “qualifying additional disability” under applicable law, it must be proximately caused by the provision of training and rehabilitation services as part of an approved rehabilitation program under Chapter 31 of Title 38. 38 U.S.C. § 1151(a)(2); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1378 (Fed. Cir. 2013). To determine whether a veteran has an additional disability, VA compares a veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program upon which the claim is based, to the veteran’s condition after such care, treatment, examination, services, or program has stopped. See 38 C.F.R. § 3.361(b). In cases of aggravation of an already existing disease or injury, VA will apply the provisions of 38 C.F.R. §§ 3.322(a) and 4.22 in rating the additional disability. Service connection may also be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). A September 2019 VA examination report shows a sleep study undertaken in January 2019 documented moderate obstructive sleep apnea. However, the VA examiner opined that such was less likely as not incurred in or caused by service as there was no sleep study located in the service treatment records. Nevertheless, because such opinion appeared to be based solely on the absence of sleep studies during service and did not address the Veteran’s § 1151 claim, the Board found such inadequate for the purpose of determining entitlement to compensation and remanded the issue for an addendum opinion. In September 2020, following a review of the record, a VA examiner noted the diagnosis of obstructive sleep apnea in 2019, but found that such disorder was unrelated to the Veteran’s military service. In support of such determination, he found it probative that his service treatment records, to include the separation examination, were silent for any sleep-related complaints, there was nothing documented in his post-service records supporting the complaint of snoring after service, and the diagnosis of obstructive sleep apnea was not made until many years after service. The examiner further noted that, while the Veteran clearly asserted that his back pain was caused by tasks associated with VA vocational services, to include sitting in an upright position, operating a computer, keyboard, and mouse, and reading books for 12 hours, he did not mention obstructive sleep apnea in such assertion. Moreover, he found that the Veteran’s biggest risk factor for obstructive sleep apnea was his nonservice-connected nasal septal deviation, which represented a more likely contributing factor than his military service or vocational rehabilitation tasks and, therefore, opined it was at least as likely as not that the Veteran’s obstructive sleep apnea was proximately due to his deviated septum. Consequently, the examiner concluded that it was less likely than not that the Veteran’s obstructive sleep apnea had its onset in or was otherwise related to service, or is proximately due to tasks associated with VA vocational rehabilitation. Upon review, the Board affords significant probative value to the September 2020 opinion because the VA examiner considered all the pertinent evidence of record, to include the Veteran’s relevant medical history and his contentions, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary of record. In this respect, the Board acknowledges the Veteran’s assertions regarding a relationship between his obstructive sleep apnea and service as well as the effects of his studies on his sleep. However, as a lay person, he does not possess the requisite training and experience necessary to address such complex medical matters. In this regard, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such inquiries involve medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect. Moreover, whether the symptoms the Veteran reportedly experienced during or after service, to include as reported by himself, his fellow service members, and his spouse, are in any way related to his currently diagnosed obstructive sleep apnea is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Accordingly, the lay opinions as to the onset and etiology of the Veteran’s obstructive sleep apnea are not competent evidence and, thus, are not afforded probative value. Based on the foregoing, the Board finds that the Veteran’s obstructive sleep apnea is not shown to be proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program under Chapter 31, and is not shown to be causally or etiologically related to any disease, injury, or incident during service. Thus, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 and/or service connection for obstructive sleep apnea is not warranted. In reaching such determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, the doctrine does not apply and such must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 10 percent prior to September 30, 2009, in excess of 30 percent from September 30, 2009, to May 30, 2012, and in excess of 70 percent thereafter for dysthymic disorder. As noted in the prior remands, the appeal period before the Board concerning the Veteran’s increased rating claim for his dysthymic disorder stems from the initial award of service connection as of June 29, 1982. However, in the September 2020 remand, the Board found that a September 2019 VA examiner only addressed the Veteran’s current occupational and social impairment caused by his dysthymic disorder. In particular, the Board noted the importance of obtaining an adequate medical opinion addressing the effects and impairment attributable to the Veteran’s service-connected dysthymic disorder throughout the entire appeal period and, as a result, remanded the issue for an addendum opinion. Pursuant thereto, the Veteran underwent additional examination in October 2020, at which time the VA psychologist reiterated the Veteran’s subjective retrospective account of the past 34 years. Notably, however, he opined that it was not possible to state with exact certainty the severity of the Veteran’s depression dating back to 34 years ago in terms of how such disability would have impacted his work-related ability, and provided no further commentary addressing the questions posed by the Board’s remand. Again, the Board finds a medical opinion is vital in the instant case, given the amendment of the rating criteria during the pendency of the appeal as well as the extremely limited medical evidence dated during the period from February 1986 to December 2009 and the conflicting nature thereof, as described in detail in the September 2020 remand. As the VA psychologist failed to sufficiently respond to the previous remand directives requesting such an opinion, additional remand is warranted to attempt to obtain the necessary opinion. 4. Entitlement to a TDIU. As the outcome of the claim remanded herein may affect the Veteran’s eligibility to a TDIU, the claim of entitlement to a TDIU is inextricably intertwined with the former matter. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of the Veteran’s TDIU claim must be deferred until the completion of the development and adjudication of the claim remanded herein. The matters are REMANDED for the following action: Forward the file, to include a copy of this Remand, to an appropriate clinician other than the VA psychologist who provided the October 2020 opinion for an addendum opinion addressing the nature and severity of the Veteran’s dysthymic disorder throughout the pendency of the appeal. The need for additional examination is left to the discretion of the medical professional offering the addendum opinion. (A) The clinician should review the record and describe, to the extent possible, the nature and severity of the symptoms specifically attributable to the Veteran’s dysthymic disorder throughout the entire appeal period dating back to June 29, 1982. In this regard, the examiner is requested to assess the nature and severity of such symptoms in light of both the Veteran’s reports and the medical evidence of record, to include as detailed in the September 2020 remand. (B) In particular, the examiner is asked to describe the functional impact that the Veteran’s dysthymic disorder has had on his occupational and social functioning since June 29, 1982. (C) If the examiner finds the Veteran’s dysthymic disorder negatively impacted his occupational functioning to the point where he would be unable to secure or maintain gainful employment, he or she should indicate when exactly such occurred, if possible. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.