Citation Nr: 21023538 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-12 245A DATE: April 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (sleep apnea) for purposes of accrued benefits is denied. Entitlement to a rating of total disability based on individual unemployability (TDIU) for purposes of accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in February 2018. The appellant, his surviving spouse, filed an application for DIC benefits in March 2018, within a year of his death. 2. The Veteran’s sleep apnea was not etiologically related to service. 3. The Veteran did not meet the schedular rating criteria for a grant of TDIU; during the appeal period, the Veteran’s service-connected did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea (sleep apnea) for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The criteria for a rating of total disability based on individual unemployability (TDIU) for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to April 1973, and from February 1974 to June 1976. The Veteran died in February 2018. The appellant, his surviving spouse, filed an application for substitution in March 2018; VA issued an administrative decision dated August 2018, indicating acceptance of her request for substitution. See 38 C.F.R. § 3.1010. 1. Entitlement to service connection for obstructive sleep apnea (sleep apnea) for purposes of accrued benefits The appellant seeks service connection for sleep apnea, for purposes of accrued benefits. Specifically, she asserts that the Veteran had difficulty sleeping ever since returning from Vietnam. In the course of his application, the Veteran ascribed this impediment to sleep apnea, first diagnosed in 2016. Unfortunately, the appellant’s claim must be denied because it is less likely than not that the Veteran’s sleep apnea was due to service or service-connected disabilities. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As COPD is not covered in § 3.309(a), though, service connection via the demonstration of continuity of symptomatology is not for application. Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence showing (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. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, after reviewing all evidence currently of record, the Board determines that service connection for sleep apnea is not warranted because the evidence does not show that the Veteran’s sleep apnea is related to or had its onset during his service, nor is it related to his service-connected disabilities. First, the Board finds that service connection is not warranted on a direct basis. While the Veteran did have a diagnosis of sleep apnea during the period on appeal, the Veteran’s service treatment records do not show treatment for or symptoms of sleep apnea in or within a year of service. While his May 1976 separation examination report lists “trouble sleeping,” it does not specify any symptoms unique to sleep apnea such as snoring or breathing difficulties. In support of her claim, the appellant points to records dated April 1976 and December 1976, within a year of separation, indicating that the Veteran could not sleep unless he was completely exhausted. Records from 1978 and 1984 reflect tiredness and easy shortness of breath. The appellant opines that these are symptoms of sleep apnea and indicate continuity of symptomatology, warranting service connection. While the Board concedes that the Veteran may have experienced some sleep disturbances since service, the medical evidence shows that it is less likely evidence of service-connected sleep apnea. In this regard, the appellant (and initially, the Veteran) has been afforded multiple medical opinions which consider the Veteran’s symptoms during and following service, and all opine against a link between the sleep apnea, diagnosed many years after separation, and the Veteran’s reports of difficulty sleeping during and shortly after separation from service. For example, in August 2016 an examiner opined that the Veteran had a commercial driver’s license for 40 years, and would not have retained this license, with its stringent safety requirements, if he had symptoms of sleep apnea during that period. Moreover, the medical evidence ascribes the Veteran’s later development of sleep apnea to non-service-related factors such as gender, obesity, and/or craniofacial abnormalities. In February 2019 and December 2020, examiners also noted the Veteran’s long-time heavy use of alcohol and smoking tobacco, citing these as more likely explanations. In February 2019, an examiner states that sleep apnea, undiagnosable by symptoms alone, can only be diagnosed via a sleep study; the Veteran’s sleep symptoms in 1976 were distinct from those noted in 2016. when he was diagnosed with sleep apnea via a sleep study. The December 2020 examiner confirms that the Veteran’s easy fatigue and his need to be completely exhausted to sleep, can indicate several disorders. However, there is no medical basis to tie them to sleep apnea in particular. The Board has reviewed the evidence of record but finds no medical evidence or opinions to contradict the various VA examiner’s opinions. They were rendered by medical specialists in contemplation of a complete medical history and known medical principles. As such, direct service connection for accrued benefits purposes is not supported in this matter. As for secondary service connection, the medical evidence does not indicate that the Veteran’s service-connected pulmonary histoplasmosis caused or aggravated his sleep apnea. The Veteran is currently only service-connected for pulmonary histoplasmosis. The December 2020 examiner opines that the Veteran’s service-connected pulmonary histoplasmosis has a different pathophysiology and etiology from sleep apnea. In other words, they involve completely different body systems. Moreover, the Veteran's histoplasmosis was asymptomatic; if the disorder was inactive, it is far less than likely that it caused or aggravated sleep apnea. Rather, the proximate cause of this Veteran’s sleep apnea were male gender, age, his long history of smoking, being overweight, and alcohol use, alone or in combination. While the examination reports do not expressly address whether the Veteran’s sleep apnea was aggravated (or exacerbated beyond its natural progress) by his service-connected pulmonary histoplasmosis, the evidence does not indicate such an etiology. Rather, the competent medical evidence points to several non-service connected etiologies. Further examination would not assist the Veteran’s claim and would only serve to delay adjudication. In arriving at this conclusion, the Board notes the appellant’s assertion in her March 2021 Appellate Brief that the Veteran’s in-service symptoms did indeed indicate sleep apnea, contrary to the observations of his examiners. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the appellant, and the Veteran prior to his death, are not competent to opine regarding the etiology of insomnia, snoring, or exhaustion, nor to make an etiological conclusion regarding the cause of the Veteran’s later-diagnosed sleep apnea. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. Specifically, even construing the Veteran’s statement as an opinion, the Veteran is not as qualified as his medical examiners to determine that his service or service-connected disabilities at least as likely as not caused or aggravated his sleep apnea. Qualified medical examiners have considered the in-service symptoms and opined that the Veteran’s sleep apnea is at least as likely as not caused by the Veteran’s age, gender, history of smoking tobacco, drinking alcohol in excess, and weight. Therefore, the lay statements of belief that the Veteran’s sleep apnea is related to his time in service are found to lack competency. In sum, the Veteran’s sleep apnea was diagnosed many years after separation from service, and is not otherwise etiologically linked to his reported sleep difficulties at the time of separation and shortly after service. Neither has it been aggravated or caused by a service-connected disability. Therefore, on the evidence of record, the appellant’s claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to a rating of total disability based on individual unemployability (TDIU) for purposes of accrued benefits The Veteran, prior to his death, sought a total disability rating based on individual unemployability (TDIU). The appellant has since pursued that claim based on the loss of the Veteran’s commercial driver’s license due to his shortness of breath. The Board finds that the claim should be denied. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). After a review of the evidence of record, the Board determines that TDIU is not warranted. Since a TDIU is essentially a rating, a prior denial does not necessarily preclude another claim. While the Veteran formally applied for TDIU in July 2016 and was denied, his increased rating claim for his right shoulder disability dates to May 2013, as part and parcel of an increased rating claim for pulmonary histoplasmosis (it is noted that the Board denied an increased rating for that disability in its January 2019 decision and remand, and remanded the TDIU claim for further development). Thus, May 2013 is the beginning of the appeal period. At his death, the Veteran’s service connected disabilities consisted only of pulmonary histoplasmosis, rated at 10 percent. In January 2019, the Board granted service connection of bilateral tinnitus (granted a 10 percent rating by the RO), and bilateral hearing loss (rated by the RO as noncompensable). Therefore, the Veteran’s combined rating for the appeal period is 20 percent. This does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a), and TDIU on a schedular basis is generally precluded. Under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board must also consider TDIU even when the schedular criteria are not met. VA policy is that all Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (b), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where Veterans are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Although the Board cannot assign an extraschedular TDIU in the first instance, it is not precluded from specifically adjudicating whether to refer a case for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, the evidence of record indicates referral for extraschedular consideration is not warranted. In light of its findings addressed above, the Board now finds that, based on all evidence of record, the record does not support a finding that the Veteran is unemployable exclusively due to this service-connected disabilities and therefore will not remand the issue for extraschedular consideration in the first instance. With respect to the medical evidence, the Veteran’s VA medical treatment records indicate that he was not necessarily precluded from work, and that any inability to secure or follow a substantially gainful occupation was a result of non-service-connected disabilities. While the Veteran has had difficulty sleeping and pulmonary symptoms including shortness of breath since the beginning of the appeal period, a June 2016 work status report competently indicates that the Veteran has no medical restrictions from work. Indeed, the August 2016 C&P examiner observed that the Veteran still drove, left the house on his own, and has no restrictions with sitting or standing. While he was limited to light lifting and only walking two blocks without a break, the ability to perform the essential functions of employment were not impeded by the Veteran’s service-connected histoplasmosis. Further, as the August 2016 C&P examiner opined, the Veteran’s dyspnea was more likely attributable to non-service connected COPD and asthma. Indeed, the August 2016 C&P examiner noted that after treatment for histoplasmosis in 1976, the Veteran lived a normal life, and developed breathing problems within the previous 4-5 years. The Veteran’s lungs were not scarred or restricted enough to indicate effects of histoplasmosis. Rather, the examiner ascribed the Veteran’s symptoms to non-service connected COPD and asthma. The Board recognizes that the Veteran was unable to continue truck driving, his profession for 40 years. Thus, the Board acknowledges the medical and lay evidence indicating an inability to work in his usual occupation due to lung problems. While the Veteran’s breathing difficulties prevented him from his usual occupation as a truck driver, the evidence does not show the Veteran’s histoplasmosis or hearing loss and tinnitus rendered him unable to secure and follow substantially gainful employment. The fact that a medical professional finds a Veteran unemployable due to a service-connected disability is not dispositive, as the Board has ultimate responsibility for determining whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board finds that despite his limitations, the Veteran is not unemployable. While the Veteran can no longer keep his commercial driver’s license, his overall impairment is not at a level to render him unable to keep employment. Even if the Veteran’s histoplasmosis, hearing loss, and tinnitus relegated him to menial tasks, they did not necessarily limit him from substantially gainful employment at any position. Indeed, the medical and lay evidence does not even suggest that the Veteran is unable to concentrate long enough to complete tasks involved in employment. The Board infers from the medical and lay evidence that despite his histoplasmosis, the Veteran can engage in employment that does not affect his breathing and accommodates his exertional abilities. Furthermore, the record shows that during the appeal period, the Veteran’s dyspnea was attributed to non-service connected COPD and asthma, rather than histoplasmosis residuals. Since the Veteran has been observed as capable of doing basic activities despite his histoplasmosis, the Board finds that this disability did not preclude substantially gainful employment. Accordingly, the Board determines that despite his losing breath easily, the Veteran was not incapable of finding and keeping substantially gainful employment. Any significant functional impairment was not due to his service-connected disability. Further, there was no evidence that his service connected disabilities As the evidence of record does not support a finding that his service-connected disabilities alone prevented him from maintaining employment in general, the Board declines to remand the issue of entitlement to extraschedular TDIU for further consideration. Therefore, the claim is denied. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia 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.