Citation Nr: 21022641 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-05 031 DATE: April 16, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that sleep apnea was incurred in or is related to any incident of active duty service, or that it was caused or aggravated by a service-connected disability. 2. The Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1960 to March 1974 and from June 1974 to October 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in August 2020. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for sleep apnea is denied. The Veteran contends that he has sleep apnea that is directly related to his active service or secondary to his service-connected gastroesophageal reflux disease (GERD), hiatal hernia, and esophageal stricture. Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Initially, the Board observes that the record establishes a current diagnosis of obstructive sleep apnea, as shown in an April 2013 sleep study. Accordingly, a current disability is established. The Veteran’s service treatment records are silent for any complaints of or treatment related to sleep apnea, and the first post-service medical evidence of record reflecting sleep apnea is the April 2013 sleep study. The Veteran and fellow service-members reported that the Veteran had difficulty sleeping during his active service. Additionally, the only probative medical evidence in the claims file discussing the etiology of the Veteran’s sleep apnea is an October 2020 VA opinion, which concluded that it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by his active duty service. The October 2020 VA examiner noted that the Veteran was competent to report a history of symptoms but is not capable of diagnosing those symptoms. The VA examiner further noted that the Veteran waking up during service due to GERD is separate than awakenings due to sleep apnea. The VA examiner noted that there is no objective evidence to establish sleep apnea until 2013, approximately 29 years after the Veteran’s separation from active service. As the evidence of record does not establish in-service incurrence of sleep apnea or a nexus between the Veteran’s sleep apnea and his active duty service, service connection on a direct basis is not warranted. Service connection is also not warranted for sleep apnea as secondary to a service-connected disability. With respect to a nexus between the current sleep apnea and the Veteran’s service-connected disabilities, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran was provided VA examinations related to his sleep apnea in January 2020 and October 2020. The January 2020 VA examiner reviewed the record and opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of his service-connected condition. As rationale, the VA examiner explained that there is no medical literature that concludes GERD or esophageal cancer causes sleep apnea. The VA examiner further explained that the conditions may exist as comorbidities, but GERD/esophageal cancer does not cause the development of sleep apnea. The VA examiner noted that the medical literature provided in a June 2016 private opinion is invalid, outdated, and speculative and only proves a co-existence between GERD and sleep apnea, not a causative relationship. The October 2020 VA examiner reviewed the record and opined that it is less likely as not that the Veteran’s service-connected disability aggravated his sleep apnea beyond its natural progression. As rationale, the VA examiner explained that there is no objective evidence for any aggravation of the Veteran’s sleep apnea due to his service-connected GERD. The VA examiner noted that the Veteran has documented chronic sleep impairment issues related to chronic pain, GERD symptoms and residuals of his esophageal cancer surgery; however, these effects are all separate and unrelated to his sleep apnea. The VA examiner further noted that the Veteran’s sleep apnea has improved with use of the CPAP and that the Veteran’s private physician notes that the Veteran’s sleep apnea is well managed and that any sleep disruption is related to his other medical conditions. The Board finds that the VA examiners’ negative nexus opinions are due great probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). In favor of a finding of a nexus is a June 2016 private opinion. The June 2016 examiner reviewed the record and opined that it is at least as likely as not that the Veteran’s GERD contributed to his obstructive sleep apnea. As rationale, the private examiner explained that the medical and lay literature shows that the two conditions are very commonly present together and many researchers and clinicians feel that GERD may lead to obstructive sleep apnea. The private examiner further explained that each condition sets up a viscous cycle in which one condition cannot be separated from the other. The Board finds that June 2016 private opinion provides little probative value. The private examiner’s opinion that the Veteran’s GERD and sleep apnea are commonly present together and the GERD “may” lead to sleep apnea is speculative and general in nature, utilizing the word “may.” See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a physician’s statement framed in terms such as “may” or “could” is not probative). Accordingly, the Board finds that the June 2016 private opinion is due relatively less probative weight than the January 2020 and October 2020 VA examiners’ well-reasoned opinions. See Guerrieri, 4 Vet. App. at 470-71 ; see also Nieves-Rodriguez, 22 Vet. App. 295; Prejean, 13 Vet. App. at 448-9. The Board acknowledges that the Veteran reported that he believed his sleep apnea is directly related to his active service or secondary to his service-connected disabilities. Lay statements are competent evidence to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the VA examiners acknowledged the Veteran’s reports of trouble sleeping during service and that his GERD causes his sleep apnea, but explained that while the Veteran had difficulty sleeping during service and continues to have difficulty sleeping, these problems are related to his service-connected GERD. In this case, while the Veteran is competent to report observable symptoms, his opinion as to the cause of his symptoms simply cannot be accepted as competent evidence, as he does not have the medical training and expertise required to make such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Accordingly, the Board affords the VA opinions more probative value than the Veteran’s lay statements as to the etiology of his sleep apnea. In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current sleep apnea and his active military service, nor is the sleep apnea disability at issue proximately due to, or chronically aggravated by his service-connected GERD. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 2. Entitlement to a TDIU is denied. The Veteran seeks entitlement to a TDIU. He asserts his service-connected disabilities substantially prevent most or all forms of employment, and a TDIU is thus warranted. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16 ; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is service connected for GERD, rated as 30 percent disabling and esophageal cancer, status post-surgical excision with post-operative scar, rated as 10 percent disabling. The Veteran has a combined disability rating of 40 percent. Thus, the schedular percentage requirements for a TDIU have not been met as the Veteran did not have a single service-connected disability ratable at 60 percent or higher or a combined rating of 70 percent or higher. Nevertheless, the Board will consider whether the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation during that period. See 38 C.F.R. § 4.16 (b). Turning to the relevant evidence of record, in an August 2018 VA Form 21-8940, the Veteran reported that he last worked full-time in December 2004 and became too disabled to work in January 2005. He further reported that his service-connected GERD and cancer prevents him from securing or following a substantially gainful employment. He further reported that his nonservice-connected sleep apnea prevents him from securing or following a substantially gainful occupation. At a March 2017 VA examination, the Veteran reported symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and sleep disturbances. The VA examiner noted that the Veteran’s whole esophagus was removed due to cancer, increasing the chances of frequent indigestion and epigastric distress, which affects his daily living. A January 2019 VA examiner also noted that the Veteran’s whole esophagus and one-third of his stomach was removed due to cancer, increasing the chances of frequent indigestion and epigastric distress and would need to take breaks during flare-ups of GERD. As discussed above, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. The Board attributes probative value to the VA examiners’ assessments as to the Veteran’s likely functional impairment in a work or worklike setting due to the service-connected GERD and cancer, as those assessments are based on an in-person examination of the Veteran and on the examiner’s knowledge and expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). Therefore, the Board accepts the examiners’ statements as probative evidence that the Veteran’s GERD and cancer would require the Veteran to take breaks during flare-ups. In view of the above-described limitations, the Board finds that the Veteran is essentially limited to work in an environment that allowed breaks during flare-ups. With such an occupational profile, the Veteran would be able to perform work in at least some occupational settings. The Board has considered the Veteran’s level of education, special training, and previous work experience. See 38 C.F.R. §§ 4.16. The record indicates that the Veteran has a college education with post graduate experience. He last worked as a program manager until 2005. The Board finds that the Veteran’s college education is not inconsistent with an ability to perform work of an unskilled, semi-skilled, or skilled nature. The Veteran has not worked since 2004. However, the Board finds that the Veteran’s remote work history would not prevent him from transitioning to an unskilled, semi-skilled, or skilled occupation, or from securing or following an unskilled, semi-skilled, or skilled occupation, which do not require special training and can be learned on the job site. The Board does not doubt the Veteran’s reports that his service-connected disabilities limit his functional abilities. In addition, the Board acknowledges that the Veteran’s nonservice-connected disabilities may further limit his functioning such that he is unable to secure or follow a substantially gainful occupation. However, his nonservice-connected disabilities are not for consideration in determining whether he is entitled to a TDIU. See 38 C.F.R. § 4.16. When only his service-connected disabilities are considered, the Veteran is limited to work in in positions that allow breaks during flare-ups. With such remaining functional capacity, the Veteran would be able to perform the duties required for most occupations. As such, the probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Rather, due to his service-connected disabilities, the Veteran is limited to work that allows for breaks during flare-ups of his service-connected GERD. He has a college education and his occupational experience does not further limit his ability to secure and follow substantially gainful employment. Accordingly, the preponderance of the evidence is against a finding of entitlement to a TDIU, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.