Citation Nr: 21024949 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-27 875A DATE: April 27, 2021 ORDER From June 30, 2008 to May 4, 2012, a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. Service connection for sleep apnea, including as secondary to the service-connected posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. For the rating period from June 30, 2008 to May 4, 2012, the Veteran was unable to maintain substantial gainful employment due to service-connected PTSD. 2. The Veteran has a current diagnosis of sleep apnea. 3. Sleep apnea was not incurred in service and is not etiologically related to active service. 4. Sleep apnea is not caused or worsened by the service-connected PTSD CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, from June 30, 2008 to May 4, 2012, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 1968 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and May 2014 rating decisions that denied TDIU and service connection for sleep apnea. In November 2016, the Veteran and his wife testified at a Travel Board hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. In April 2018, the Board granted TDIU from May 4, 2012 and remanded the remaining issues of TDIU for the period from June 30, 2008 to May 4, 2012 and service connection for sleep apnea for additional development, including to obtain an addendum VA medical opinion, and to refer the TDIU issue to the Director of Compensation Service. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the April 2018 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. TDIU Legal Authority Disability ratings are determined by applying the criteria set forth in VA’s Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. 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. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 1. TDIU from June 30, 2008 to May 4, 2012 is Granted. In February 2013, the Veteran submitted a completed TDIU form (VA Form 21-8940, Application for Increased Compensation Based on Unemployability). The Veteran represented that he had not been able to maintain (follow) substantial gainful employment since 2008 due to the service-connected PTSD. During the November 2016 Board Hearing, the Veteran testified that he last worked in August 2007 due to mandatory retirement; however, he has not been able to return to work since then due to symptoms of PTSD. Specifically, the Veteran and his spouse testified that he suffers from regular sleep disturbance due to PTSD and has difficulty carrying out tasks due to lack of concentration, getting confused easily, and low frustration tolerance. The Veteran testified that he also has difficulty interacting and relating to other outside of his immediate family and group therapy. The Veteran reported that he takes medications daily to help him relax; however, the medications make him drowsy, disoriented, and further limit his concentration and focus. Additionally, if he fails to take the medications, he becomes more depressed and has increased anxiety, and social isolation. See February 2013 VA Form 21-8940, November 2016 Board hearing transcript. Prior to May 4, 2012, the only service-connected disability is PTSD, rated 50 percent. Because the combined disability rating percentage does not meet the standards of 38 C.F.R. § 4.16(a) for TDIU eligibility for the rating period from June 30, 2008 to May 4, 2012, a TDIU may be considered only under 38 C.F.R. § 4.16(b). Pursuant to the April 2018 Board Remand, the appeal for a TDIU was referred to the Director of Compensation Service for consideration (adjudication) of TDIU under 38 C.F.R. § 4.16(b). In November 2018, the Director of the VA Compensation Service adjudicated and denied a TDIU. Because the appeal for a TDIU under 38 C.F.R. § 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation & Pension is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). After reviewing all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise on the question of whether the service-connected PTSD prevented the Veteran from maintaining substantial gainful employment for the rating period from June 30, 2008 forward. A review of the record reflects credible lay and medical evidence indicating that the service-connected PTSD has caused moderately severe mental limitations. Records from the Social Security Administration (SSA) show the Veteran is in receipt of disability benefits due to PTSD and depression alone since June 23, 2008. See April 2011 SSA Determination. Treatment notes show that the Veteran was referred for psychiatric treatment in June 2008 due to severe PTSD and depression. Specifically, it was noted, that sometime after the Veteran retired as a firefighter in 2007, he began to experience significant depressive symptoms as well auditory hallucinations, nightmares, flashbacks, and re-experiencing of traumas from the time in service. It was noted that he began to ruminate over events from Vietnam as he had nothing to distract himself. Upon examination, there was above normal suspiciousness, very depressed mood and affect, extreme irritation and anger, and poor insight, waxing and waning attention, circumstantial thoughts and required redirection to focus. See June 2008 VA treatment record. The record reflects some improvement in symptoms upon beginning regular individual psychotherapy, group therapy, and psychotropic medications; however, the Veteran continued to exhibit symptoms of dysphoric, anxious, and distressed mood; nightmares; flashbacks; paranoia; hypervigilance; flat affect, variable and attention and concentration that was tangential and rambling at times; irritability; lack of motivation; anhedonia; and social withdrawal. It was also noted that speech was mildly dysphoric with stammering and uncertainty in forming complete thoughts and that he would become more distressed when he stammered and had word finding difficulties. See March 2009, June 2009, July 2010August 2010, September 2010, October 2011, November 2010, March 2012 VA treatment records. An August 2010 treatment note indicates that the Veteran had not made measurable improvement in mood despite engaging in 43 sessions of individual therapy. It was also noted that he continued to ruminate on the horrors of wartime since his retirement and had no goal-directed activity to distract himself. Although he attempted activities that were suggested, he suffered through them. See August 2010 VA treatment record. In a November 2010 letter the Veteran’s treating VA psychologist noted that the Veteran’s PTSD has manifested as symptomatology and impairment characterized by difficulties engaging in social activities outside the home, relating to primary family, carrying out daily activities such as grocery shopping and errands, chronic sleep insomnia and nightmares, heightened suspiciousness and paranoia; anger management problems, hypervigilance; problems with attention and concentration; social isolation; irritability; and inability to have a solid intimate relationship with spouse. Dr. Cook opined that the symptoms of PTSD had rendered the Veteran unable to participate in gainful employment, fully functioning social relationships, and has contributed to difficulty making adjustments in life. See November 2010 correspondence. Additionally, the SSA Decision notes that the Veteran lacks the capacity for remembering, understanding and carrying out detailed, technically complex or even simple job instructions or tasks within schedules of a workday or work week due to the functional limitations associated with the service-connected PTSD. The decision also indicates he lacks the capacity for making judgments in simple work-related situations, or in responding (relating) appropriately to supervision, co-workers, and usual work situations. It was also noted that he lacks the capacity for dealing with the public, as well as for adapting to changes in routine work settings, or for maintaining adequate attention or concentration spans for at least 2-hour intervals. Furthermore, he cannot comply with the attendance requirements or the production quotas of a competitive work environment, throughout a workday or work week. See April 2011 SSA Decision. A review of the record indicates that the Veteran has past work experience as a firefighter. See February 2013 TDIU claim, November 2016 Board hearing transcript. Because the Veteran’s past work experience likely required the ability to adapt to stressful situations, adequate attention and concentration to carry out work tasks safely and navigate hazards in the performance of work duties, and the ability to interact with coworkers, supervisors, and the general public, it is unlikely that he would be able to return to and maintain this employment from June 30, 2008 to May 4, 2012. Moreover, given the symptoms of flat affect; depressed, anxious, and dysphoric mood; suspiciousness, paranoia, hypervigilance, social withdraw, variable concentration and attention, irritability, low motivation, chronic insomnia, and difficulty adapting to situations, as well as side effects of medication which cause drowsiness, disorientation, and limited concentration and focus, the Veteran would likely have difficulties engaging adequately with supervisors and coworkers and maintaining the level of concentration and persistence to tasks necessary to perform even unskilled work during a regular 8-hour workday and 40-hour work week. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, given the Veteran’s functional limitations, for the period from June 30, 2008, the service-connected PTSD prevents the Veteran from performing the type of employment for which he is trained or engaging in other unskilled work. Given the Veteran’s mental limitations due to the service-connected PTSD, the Board finds that the service-connected disability is of sufficient severity to preclude maintaining substantially gainful employment from June 30, 2008. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a TDIU is warranted for the TDIU period from June 30, 2008. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b). 2. Service Connection for Sleep Apnea 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with sleep apnea, which is not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially 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. 38 C.F.R. § 3.310(c). The Veteran contends that fear, stress, and sleep deprivation during service caused him to develop sleep apnea. The Veteran contends that sleep apnea is the result of the service-connected PTSD. See September 2013, August 2014 Statements in Support of the Claim. Initially, the Board notes that the Veteran has a current diagnosis of sleep apnea, as reflected in the July 2013 sleep study. See July 2013 VA treatment record. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding that the current sleep apnea is causally related to active service. The service treatment records are silent for complaints of symptoms or findings of sleep apnea during service. The November 1970 service separation examination report does not reflect a report of any sleep disordered breathing problem, to include a diagnosis of sleep apnea, or relevant symptoms of sleep apnea. It was noted that the Veteran had no serious accident, operation, or illness while in service. Post-service treatment records also do not reflect contemporaneous lay histories of symptoms of sleep apnea during or since service. Symptoms and diagnosis of sleep apnea are first noted many years after service separation. While post-service treatment records reflect reports of chronic sleep impairment due to nightmares and flashbacks associated with PTSD, the record is silent for complaints of sleep apnea. The first indication of any symptoms of sleep apnea does not arise until July 2013, 43 years after service separation, when the Veteran was referred for sleep study that revealed moderate sleep apnea. See July 2013 VA treatment records. Post-service treatment records do not establish a nexus between the current sleep apnea, first manifested many years after service, and active service. The Veteran has not provided a nexus opinion relating the current sleep apnea to active service. No VA medical opinion on the theory of direct service connection is needed in this case because, as explained above, the weight of the evidence demonstrates no in-service sleep apnea injury or disease or event, including no symptoms of a sleep apnea in service. The weight of the evidence demonstrates no sleep apnea symptoms until many years after service. As there is not a reasonable possibility that a medical opinion would help substantiate the appeal because there is no in-service injury, disease, or event to which a currently diagnosed disability could be related by medical opinion, the Board finds that further development is not necessary on the theory of direct service connection. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Any medical opinion that purported to relate a current disability to service would necessarily assume an inaccurate fact of some in-service injury, disease, or event having occurred, contrary to the weight of the evidence and the Board’s findings of fact, so would be of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). As for the theory of secondary service connection, the Board has considered articles the Veteran submitted in November 2016 purporting to relate sleep apnea to the service-connected PTSD. While the studies noted that sleep problems are cardinal symptoms of PTSD, and that there may be an increased prevalence of obstructive sleep apnea (OSA) in individuals with PTSD, the study noted that there was limited evidence that PTSD actually elevated OSA. Moreover, the studies do not account for the Veteran’s specific clinical history of sleep apnea and PTSD to assess whether the evidence supports a causal or aggravating nexus between the Veteran’s sleep apnea and service-connected PTSD. The Veteran was provided a VA examination in February 2014. The VA examiner opined that it is less likely than not that sleep apnea was caused by the service-connected PTSD. The examiner reasoned that sleep apnea is a medical condition caused by variations in craniofacial anatomy and the repetitive collapse of the upper airways in the supine positions. The examiner noted that, while PTSD can cause sleep disturbance such as insomnia, it does not result in OSA. See February 2014 VA examination report. (Continued on the next page)   In an October 2018 addendum opinion, the VA examiner opined that it is less likely than not that sleep apnea was aggravated beyond a natural progression by PTSD. The examiner noted that PTSD can cause sleep difficulties but is less likely to cause or aggravate sleep apnea beyond a natural progression. The examiner explained that sleep apnea is a specific sleep associated breathing disorder, and it is a common disorder characterized by repetitive narrowing or collapse of the pharyngeal airway during sleep and is caused by anatomical variations in the craniofacial features and/or neck. Obesity, alcohol use, and supine sleeping position (among other things) can exacerbate sleep apnea. The examiner noted that, while several sleep disorders can be highly prevalent in PTSD (nightmares, insomnia, sleep apnea, periodic limb movements), and sleep apnea is associated with a higher prevalence of psychiatric comorbid conditions in veterans including mood disorders, anxiety, posttraumatic stress disorder, psychosis, and dementia, prevalence does not signify causative etiology. There is no sufficient evidence that PTSD causes or aggravates sleep apnea beyond a natural progression. The examiner noted that in some scientific studies comparing standard polysomnography (sleep study) results, no differences in test results were detected between subjects with PTSD and control subjects (without PTSD) except an increased number of brief arousals from REM sleep being detected in subjects with PTSD. It was concluded that sleep complaints in PTSD might represent amplified perceptions of brief arousals from REM sleep, but persons with PTSD had no objective evidence for increased incidence of clinically relevant sleep disturbances such as sleep apnea. See October 2014 VA examination report. When considered in light of the entire record, the Board finds the VA medical opinions to be highly probative, as they are supported by detailed rationale that considers the Veteran’s lay assertions in light of the medical literature and a review of the evidence as a whole. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s current sleep apnea and active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea on a direct, secondary, or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Moore, Shanna 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.