Citation Nr: 21024956 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-26 226 DATE: April 27, 2021 ORDER Entitlement to service connection for sleep apnea, to include as a qualifying chronic disability or as secondary to service-connected posttraumatic stress disorder (PTSD), and pneumonitis, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. Sleep apnea was not present in service or within one year thereafter, and is not otherwise etiologically related to the Veteran’s service or to service-connected disability. 2. Prior to May 14, 2015, the Veteran’s service-connected disabilities cause unemployability. 3. On and after May 14, 2015, none of the Veteran’s service-connected disabilities cause unemployability. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2020). 2. Prior to May 14, 2015, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2020). 3. On and after May 14, 2015, the criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to July 1992 and is in receipt of the Combat Action Ribbon and the Southwest Asia Service Medal, among others. This case comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This case was most previously before the Board in January 2019. In November 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In February 2014 the Veteran gave testimony at a hearing at the RO before a local hearing officer. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). The Veteran offered testimony before the undersigned at a Board hearing in November 2015. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection for Sleep Apnea 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 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran 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- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2020). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2020); Allen v. Brown, 7 Vet. App. 439 (1995). At the November 2015 Board hearing the Veteran indicated that he first noticed sleep difficulties during service. His first wife had mentioned to him around 1991 that he snored while sleeping and when at home he would sleep in a separate room. The Veteran’s service treatment records (STRs) contain no complaints or diagnoses related to sleep apnea. A January 2017 VA opinion was provided. The examiner opined that sleep apnea was not related to the Veteran’s service. The examiner also stated that the Veteran’s sleep apnea was not caused or aggravated by service-connected pneumonitis or PTSD. The examiner noted that obstructive sleep apnea was due to or the result of increased upper airway resistance that results in decreased blood oxygenation during sleep. The examiner noted that there was no evidence to support that the Veteran’s PTSD or pneumonitis had in any way increased upper airway resistance thus leading to or aggravating the Veteran’s obstructive sleep apnea. As the January 2017 VA examiner did not address statements from the Veteran and his wife, the portion of the examination that dealt with direct service connection was not adequate. A November 2019 VA respiratory examination noted that the Veteran had been diagnosed with obstructive sleep apnea since 2012. The examiner stated that the sleep apnea did not have its onset in service and was not related to the Veteran’s service. The examiner noted that the Veteran’s STRs made no indication or suggestion of anything that would cause his sleep apnea, and further noted the Veteran’s current weight was 251 pounds as opposed to the Veteran’s weight of 175 pounds at service discharge. The examiner noted that “obesity/body habitus” were important risk factors in patients who suffer from sleep apnea. The examiner also noted clinical findings from the Veteran’s 2012 sleep study in support of his opinion. In addition to noticing that he had reviewed medical literature, the examiner also noted that he had reviewed the Veteran’s and his wife’s statements. In doing so, the examiner noted that the statements were very generalized and essentially stated that sleep issues are not the same as a diagnosis of sleep apnea. The Board finds that service connection for sleep apnea is not warranted. First, there is a current diagnosis of sleep apnea. Second, however, the STRs are negative for any sleep apnea during service. Thus, there are no findings of a chronic condition during service. Third, the Board finds that the evidence of record does not support a finding that the sleep apnea is related to service. The Board finds that the November 2019 VA opinion is of great probative value. The opinion contains a comprehensive review of the Veteran’s medical records and lay statements and offered a well-reasoned explanation for the opinions provided. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). Additionally, the diagnosis of sleep apnea was not until 2012, approximately 20 years after service discharge, and this weighs against a finding that it is otherwise related to service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Thus, the evidence does not support a finding of service connection for sleep apnea. Likewise, the Board accords significant probative value to the January 2017 VA opinion that the sleep apnea was not caused or aggravated by service-connected disability. The January 2017 VA examiner reviewed the relevant evidence and provided an explanation and rationale for the secondary service connection opinion. See Prejean, 13 Vet. App. at 448-9; Nieves-Rodriguez, 22 Vet. App. at 302-04. The Board observes that the January 2017 VA physician opined in a similar fashion in December 2014. Accordingly, service connection on a secondary basis is not warranted. The Veteran’s assertions that his sleep apnea is related to service or is secondary to his service-connected disabilities have been considered. But the Board finds that these etiological opinions are not capable of lay observation and are thus not competent. Respiratory disorders are complex internal conditions, as opposed to a disorder that is capable of lay observation such as ringing in the ears or varicose veins. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Moreover, any such opinion is outweighed by the probative January 2017 and November 2019 VA opinions. The Veteran’s sleep symptoms have been attributed to sleep apnea, a known diagnosis. As such, the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 pertaining to undiagnosed illness and multisymptom illnesses are not for application. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Entitlement to TDIU This issue is on appeal prior to May 14, 2015; as of that date the Veteran’s combined disability evaluation is 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, as of that date, only entitlement to TDIU based on a single disability is on appeal. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Prior to May 13, 2015, the Veteran’s combined disability evaluation was 90 percent. The following disabilities were service-connected: PTSD, at 70 percent; chronic fatigue syndrome, at 0 percent; fibromyalgia, at 40 percent; irritable bowel syndrome, at 10 percent (at 30 percent effective April 16, 2015); pneumonitis, at 10 percent; hypertension, at 0 percent; dermatitis, at 0 percent; and headaches, at 0 percent. Thus, the percentage requirements for a TDIU are met as of July 23, 2012, because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). In a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received in July 2014, the Veteran indicated that he had stopped working as a trader on February 10, 2014. In an October 2014 VA Form 21-4192, Request for Employment Information, the Veteran’s former employer indicated that the Veteran worked 8 hours a day and 40 hours a week as a dispatcher. They indicated that the Veteran was able to take time off for doctor visits and sometimes worked at home. He left the company on February 10, 2014 by submitting a voluntary resignation. In a May 2015 letter the Veteran’s VA psychiatrist noted that the Veteran had severe and ongoing PTSD symptoms, including insomnia, anger, and depression. The VA psychiatrist stated that the Veteran would be unemployable for at least the next two years, and very possibly permanently. In a January 2017 VA PTSD examination, the examiner opined that the PTSD caused deficiencies in most areas, but did not find that there was total occupational impairment due to PTSD. The Board finds that entitlement to TIDU is warranted prior to May 13, 2015, as the Veteran’s PTSD produced deficiencies in most areas, including work and relationships, his fibromyalgia produced constant widespread musculoskeletal pain and tender points, sleep disturbance, stiffness, paresthesias, headaches, and irritable bowel system. The Veteran reported in several VA examination records that he left his job voluntarily, but it was due to difficulties with relationships with his superiors and coworkers and taking time off due to pain and fatigue. Taken together, and considering the Veteran’s career in dispatch, the Board finds that his service-connected disabilities caused him unemployability as of that date. After that date, no single service-connected disability caused unemployability. Although PTSD caused deficiencies in most areas, no examiner noted he was unable to work due to that disability alone. Rather, the 2017 VA examiner found there was difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work. Chronic fatigue syndrome caused debilitating fatigue symptoms that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or symptoms that wax and wane resulting in periods of incapacitation of at least 6 weeks. As the Veteran’s occupation was sedentary, it does not appear that he was unemployable due to this disability alone. IBS was at 30 percent, which contemplates severe diarrhea with more or less constant abdominal distress. Again, this disability alone does not appear to cause unemployability. There is no evidence revealing that the Veteran was unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. In sum, entitlement to TDIU benefits prior to May 14, 2015 is warranted, but is not warranted as of May 14, 2015.. K. MILLIKAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.