Citation Nr: 21026275 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-25 054 DATE: April 30, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea is not due to or a result of his active service and his service-connected PTSD did not cause or aggravate his sleep apnea. 2. The Veteran’s service-connected disabilities do not preclude all forms of substantially gainful employment for which he qualifies based on his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, on a direct and secondary basis, are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1963 to August 1967. These matters came before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and May 2014 rating decisions by the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran timely filed a notice of disagreement and substantive appeal. In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In June 2019, the Board remanded the claims for further development, to include a claim for service connection for PTSD. In an April 2020 rating decision, the RO granted service connection for PTSD, constituting a full grant of the benefits sought on appeal with respect to that issue. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a claimed disability may be 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 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 (a). The Veteran’s PTSD is service connected. 1. Entitlement to obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). The Veteran contends that his diagnosed sleep apnea is due to his active service, or in the alternative, due to his service-connected PTSD. Service treatment records (STRs) do not reflect a diagnosis, treatment, or symptomatology of a sleep disorder. Post-service, an October 2005 VA treatment record reflects that the Veteran was assessed with sleep apnea. The physician ordered a sleep study for apnea symptoms. However, this sleep study is not associated with the claims file. In a January 2011 statement, the Veteran’s wife reported that he had night sweats, snoring problems, and woke up tired from not sleeping well during the night. In an August 2012 statement, the Veteran reported that he has been snoring and feeling tired during the day since the many nights of not being able to sleep in Vietnam. He reported that their sleeping habits were really irregular. He stated that sometimes they slept during the day, sometimes the night, or whenever they had a chance. In October 2013, the Veteran was seen for secondary polycythemia that was episodic since 2011 and increased shortness of breath. The clinician noted that this was likely secondary polycythemia possibly related to hypoxia from sleep apnea. However, in November 2013, the clinician noted that the diagnosis of sleep apnea is limited in the system but his sleep study in 2006 was unable to confirm this diagnosis: there was no evidence of obstructive sleep apnea syndrome. However, he continued to report that the Veteran spent only five percent of the total sleep time in the supine position and this could underestimate the apnea-hypopnea index. In July 2016, the clinician noted that the Veteran had borderline sleep apnea on last testing. VA treatment records reflect that sleep apnea continued to be listed as a diagnosis or on the “problem list” since 2005. During the February 2019 Board hearing, the Veteran testified that he did not have any problems with sleep before the military. He testified that his sleep problems began in service and continued ever since. The Veteran testified that he was diagnosed with sleep apnea. His lawyer argued that medical treatise says that PTSD causes sleep apnea. In March 2019, the Veteran underwent a sleep study. The clinician found that there was no evidence of obstructive sleep apnea; evidence of severe sleep related movement disorders, but no association with arousals; and poor sleep efficiency. A July 2019 DBQ report reflects that the Veteran was diagnosed with obstructive sleep apnea, but that a sleep study on March 21, 2019 that showed no evidence of sleep apnea. There were severe periodic limb movements but not associated with arousals. There was poor sleep efficiency. However, on July 31, 2019, mild sleep apnea was found and severe periodic limb movement disorder. The clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that the Veteran’s service records are silent for any complaints of sleeping issues. He reported that the Veteran had a sleep study completed in July 2019 and he was diagnosed with sleep apnea at this time; emphasizing that this diagnosis is 50 plus years after the Veteran left service. Therefore, he concluded that with no STR evidence and the recent diagnosis being 50 plus years after service, there is no evidence to support that this condition is related to service. The clinician additionally opined that the claimed condition was not at least as likely as not aggravated beyond its natural progression by service-connected PTSD offering the same rationale for his conclusion. A July 2020 DBQ report reflects that the Veteran reported a date of onset of a sleep disorder in 2005. He reported onset of daytime fatigue and snoring. He reported that he was evaluated in April 2006 by sleep study, which was negative for sleep apnea, but did note periodic limb movements. The clinician clarified that the October 6, 2005 “sleep apnea” that the physician noted into the Veteran’s problem list was based on suspicion only. He reported that a sleep study was ordered that day which was completed on April 22, 2006. He stated that this study was negative for sleep apnea. Therefore, the entry that carried over into the November 2005 VA treatment records was in error. In a February 2021 addendum opinion, the clinician noted that he reviewed the VA records, to include the DBQ’s in July 2019 and 2020, PTSD-related documents, and other pertinent post-service treatment records. The clinician also included medical treatise he reviewed in connection with the claim. He reported that medical evidence was not sufficient to support a determination of a baseline level of severity. He opined that it was not at least as likely as not that sleep apnea was aggravated beyond its natural progression by service-connected PTSD. As rationale, he reported that first and foremost, there is no evidence of aggravation of the Veteran’s sleep apnea beyond its natural course due to any cause. The Veteran had two sleep studies in 2019. The first, in March 2019, did not meet the criteria for sleep apnea. The study in July 2019 revealed mild sleep apnea, establishing the diagnosis. The Veteran is not currently on a CPAP, per the available records. Therefore, no argument for aggravation due to any cause can be made. The natural course generally requires treatment with CPAP. As the Veteran does not appear to require CPAP, there is clearly no aggravation. Furthermore, the natural course of sleep apnea requires adjustment of CPAP over time. He reported that if the Veteran has started CPAP in the interim, this constitutes normal treatment and the natural course of the condition. The natural history of the condition generally requires adjustments of CPAP settings over time, and this does not necessarily constitute aggravation. The Veteran’s prior literature submissions, including “OSA and Psychiatric Disorders, “PTSD and OSA,” and others did not show cause and effect, and actually do not necessarily show an increased risk for developing sleep apnea, though one study did suggest an increased risk. This applies to aggravation as well. The mechanism of sleep apnea involves upper airway obstruction with associated apneic episodes. There is no anatomic or physiologic mechanism by which PTSD and related psychological comorbidities can cause or aggravate sleep apnea. Though not specifically requested, this includes medications used to treat the psychological comorbidities. Anxiolytics, sleep aids, antidepressants, etc. act via the central nervous system and a different pathway than the mechanism of sleep apnea. Their effects on sleep are limited to the medication itself and are dose-related. Their effects would abate upon dose adjustment or cessation of the medication and do not constitute aggravation of the baseline mechanism of sleep apnea. Therefore, he concluded, it is less likely than not that the Veteran’s sleep apnea has been aggravated beyond its natural course due to any cause, including the Veteran’s PTSD and related comorbidities. As noted above, this also applies to the medications used to treat those conditions. He reported that the current, widely accepted, peer-reviewed literature has failed to establish PTSD and related comorbidities as a cause or aggravating factor for sleep apnea. He concluded that this review includes Up to Date, a respected, professional medical resource. The Veteran submitted medical treatise evidence from the Journal of Clinical Sleep Medicine which concluded that “OSA prevalence may be increased in MDD and PTSD.” In another study, “of 159 veterans screened, 69.2% were assessed as being a high risk for OSA” and “PTSD symptom severity increased the risk of screening position for OSA.” He submitted another article from Psychotraumatology which concluded that “PTSD is not necessarily associated with the occurrence of OSA” and “larger controlled studies in different populations need to be performed to provide more reliable estimations of the incidence of OSA in PTSD.” Another article found that sleep apnea is a frequent diagnosis in military personnel referred for evaluation of sleep disturbances after deployment. Upon review of the evidence of record, service connection for sleep apnea, on a direct and secondary basis, is not warranted. Initially, the Veteran has a current diagnosis as reflected by the July 2019 sleep study results. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service or whether his service-connected PTSD caused or aggravated his sleep apnea. Based on a review of the available records, his particular expertise, and medical literature, the August 2019 examiner found that the Veteran’s sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the clinician noted the Veteran was officially diagnosed by sleep study over 50 years from separation of service and provided an adequate rationale for his conclusion that the Veteran’s disability was not due to service. Notably, the July 2020 VA examiner explained why the VA treatment records reflecting a diagnosis of sleep apnea earlier than the Veteran was diagnosed by a sleep study in July 2019 were erroneous. As the clinician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion, as to the direct service connection claim, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). An addendum opinion was obtained in February 2021 to adequately address the Veteran’s claim that his PTSD caused or aggravated his sleep apnea. Based on a review of the available records, his particular expertise, and medical literature, the February 2021 VA clinician found that the diagnosed sleep apnea was less likely than not (less than 50 percent probability) proximately due to or the result or aggravated by his service-connected PTSD. Additionally, he addressed the medical treatise evidence submitted by the Veteran and adequately explained why this did not change his opinion. As the clinician explained the reasons for their conclusions based on an accurate characterization of the evidence of record, the opinions, addressing both causation and aggravation, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is competent and probative medical evidence with substantial and adequate rationale explaining that the Veteran’s sleep apnea is not related to his active military service and is not related to his PTSD. To the extent that the Veteran, including through his attorney, has opined that his sleep apnea is related to service and/or PTSD, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his sleep apnea relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing varicose veins, for example). For example, a lay person is competent to report daytime fatigue and observable snoring, as these are symptoms capable of lay observation. In this regard, however, the Veteran’s statements regarding the etiology have been slightly inconsistent. For example, at times he has reported that his sleep apnea symptoms began in service and have continued since then; however, during his July 2020 examination, the Veteran reported that the onset of his sleep apnea began in 2005. The Veteran was not diagnosed with PTSD until 2019. The Veteran’s statements are therefore not competent in this regard. To the extent that these lay statements are credible, the specific, reasoned opinions of the VA examiner are highly probative and carry greater weight than the Veteran’s more general lay assertions. With regard to the medical literature submitted by the Veteran, medical article and treatise evidence may suffice to establish nexus in instances where “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998). However, treatise materials are generally not specific enough to show nexus. Id. Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). In this case, regardless of the specificity of the treatise evidence submitted, its probative value is outweighed by the specific, reasoned opinion of the February 2021 VA clinician. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning. Cf. Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). Moreover, the substance of the articles submitted does not support a finding that the Veteran’s sleep apnea is related to injury or disease in service, including aggravation by the PTSD. For example, the evidence from the Journal of Clinical Sleep Medicine concluded that “OSA prevalence may be increased in MDD and PTSD.” This conclusion does not rise to a standard of as likely as not. In addition, the study indicating, “of 159 veterans screened, 69.2% were assessed as being a high risk for OSA” and “PTSD symptom severity increased the risk of screening position for OSA,” is too small of sample size to be statistically significant considering the number of current veterans in our population which is exponentially greater. Finally, the article indicating that sleep apnea is a frequent diagnosis in military personnel referred for evaluation of sleep disturbances after deployment only addresses personnel who are referred for sleep studies; and, of that population, it is reasonable to expect that there would be a higher incidence of sleep apnea in those who are referred for sleep studies than those who are not referred for sleep studies. Accordingly, that finding does not provide any statistical significance to support the Veteran’s claim. For the foregoing reasons, the preponderance of the evidence is against the claim for sleep apnea on a direct and secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be 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, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. 2. Entitlement to a TDIU due to service-connected disabilities. In the March 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that his skin disability prevents him from securing or following any substantially gainful occupation. He indicated that he stopped working at the US Postal Office in 2013 and attended one year of college. The Veteran has the following service-connected disabilities: nummular dermatitis, rated 60 percent disabling; PTSD, rated 50 percent disabling; and residuals, cyst, right hand, rated 10 percent disabling. His combined disability rating is 80 percent. Hence, he does meet the threshold percentage requirements for consideration of a schedular TDIU. See 38 C.F.R. § 4.16(a). Hence, the remaining question is whether the Veteran’s service-connected disabilities, alone, preclude gainful employment for which he would otherwise qualify based on his education and occupational experience. In this regard, the weight of the evidence indicates that the Veteran’s service-connected disabilities, alone, do not render him unemployable. An October 2012 VA examination report reflects that the Veteran’s skin condition does not impact his ability to work. During the February 2019 Board hearing, the Veteran testified that his skin disability effects his ability to work due to the pain, itching, and flare-ups. Additionally, clothing (when he was a mailman) irritated his skin as well as sunlight. The July 2019 Disability Benefits Questionnaire (DBQ) report reflects that the Veteran had occupational and social impairment with reduced reliability and productivity. Following service, the Veteran reported that he worked for the US Postal office for 34 years. After he retired, he worked as a truck diver for about eight years. He reported no significant discipline problems and was never fired. The Veteran reported that he has been unemployed since about 2006. In May 2020 DBQ report, the clinician was asked to comment on the effect of the Veteran’s service connected and/or claimed disabilities on his ability to function in an occupational environment. The clinician reported that there was no effect on physical or sedentary occupations. In a December 2020 Individual Unemployability Statement, the clinician found that there were no job-related difficulties secondary to service-connected mental health issues. While the medical evidence provides an assessment of occupational limitations, the ultimate determination as to whether the Veteran is unemployable due to service-connected disabilities is a legal one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Nevertheless, the preponderance of the evidence supports a finding that his service-connected disabilities, alone, do not preclude him from securing and following all substantially gainful employment. The Veteran’s service-connected disabilities result in functional impairment, as is determined by the disability ratings assigned for them, which are to compensate the Veteran for the average impairment of earning capacity. In other words, the assigned ratings, alone, establish that there is functional impairment that can impact the ability to perform some occupational tasks. However, the evidence does not indicate that the Veteran’s service-connected disabilities, alone, prevent him from securing or following any substantially gainful occupation. Rather, the evidence reflects that the Veteran was employed in two physical occupations until 2013, at which time he retired. Although the Veteran never gave a reason for his retirement at the time, the evidence does not show it was due to his service-connected disabilities. While the Veteran testified that his skin disabilities and clothing impacted his work when he was a mailman, the Veteran worked there for 34 years and his coinciding skin examinations did not record his complaint of skin irritation and work. Similarly, even though he specified on his formal TDIU claim (VA Form 21-8940) that he was prevented from securing or following any substantially gainful occupation due to a skin disability, his PTSD symptomatology, diagnosed in 2019, also did not appear to prevent his work as a mailman and truck driver. The Veteran specifically reported that did not have any significant discipline problems during all of his 42 years of working. Finally, the clinicians who have examined the Veteran all agree that the functional limitations caused by the service-connected disabilities are not severe enough to result in total occupational impairment or to otherwise render the Veteran incapable of maintaining or obtaining gainful employment for which he is qualified. In this case, the weight of the above evidence is against a finding that the Veteran’s service-connected disabilities, alone, prevent him from securing and following all substantially gainful employment consistent with his education and occupational experience. Although his service-connected disabilities could result in some work impairments, his own reports and the above lay and medical evidence support a finding that his service-connected disabilities (either individually or collectively) do not, alone, result in an inability to secure and follow substantially gainful employment. For the foregoing reasons, the preponderance of the evidence is against entitlement to a TDIU. The benefit-of-the-doubt doctrine is therefore not for application in this instance and entitlement to a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.