Citation Nr: 21028845 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-40 581A DATE: May 12, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is granted. Entitlement to service connection for a headache disorder, to include as secondary to service-connected PTSD, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to March 15, 2016, is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his diagnosed obstructive sleep apnea was caused or aggravated by his service-connected PTSD. 2. The Veteran did not have a diagnosed headache disorder. 3. Prior to March 15, 2016, the Veteran did not meet the schedular requirements for TDIU and his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a headache disorder, including as secondary to a service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Prior to March 15, 2016, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from August 1966 to March 1970, including service in the Republic of Vietnam. Among several decorations, the Veteran was awarded a Purple Heart and Combat Action Ribbon for his honorable service. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 2014 and February 2015 by the Department of Veterans Affairs (VA) Regional Office (RO). Regrettably, in August 2019, the Veteran died during the pendency of the appeal. An August 2020 correspondence reflects that the appellant has been accepted as the Veteran's substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The claims were remanded in June 2019 and have been returned to the Board for appellate review. Lastly, the Board notes that additional treatment records were submitted by the appellant after the Agency of Original Jurisdiction's (AOJ) last adjudication. However, in a February 2021 correspondence, the appellant, through her representative, waived the AOJ's consideration of the evidence. The Veteran and his representative have not raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be 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 medical evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is granted. It has been contended that the Veteran's sleep apnea was due to his military service, and was caused by his service-connected PTSD. The question before the Board is whether the Veteran's sleep apnea was etiologically related to his active duty service, or was caused or aggravated by a service-connected disability. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. In a February 2016 medical opinion, a private physician opined that it is as likely as not that the Veteran's service-connected PTSD aided in the development of his sleep apnea and/or permanently aggravated the condition. The examiner relied on research that showed PTSD and other psychiatric disorders were commonly associated with sleep apnea. Moreover, the physician noted a medical study found that an arousal- based mechanism initiated by post-traumatic stress promotes the development of sleep apnea in trauma survivors. In an October 2020 medical opinion, relying on medical literature, the examiner found that the Veteran's sleep apnea was not directly related to his military service, and less likely as not due to or aggravated by service-connected PTSD. He noted that service treatment records do not indicate a history or diagnosis of sleep apnea, or show the Veteran experienced excess snoring or daytime sleepiness while in service. Noting the Veteran's military experiences, he stated that they would cause PTSD but not aggravate sleep apnea. While the VA examiner noted a medical report that relates PTSD to sleep apnea, he stated that the finding is not supported by peer-reviewed medical literature. Notably, he conceded there may be a correlation between the two, but he found no evidence of direct causation. Further, he indicated that a study shows a higher risk of sleep apnea is linked to higher instances and severity levels of PTSD, but later refutes this point with another medical article. However, he did note that sleep apnea may be highly prevalent in PTSD and may exacerbate PTSD complaints, but there is no indication that PTSD causes or worsens sleep apnea. Therefore, after a review of multiple medical references, he found that it is not generally accepted that sleep apnea is caused by PTSD. Rather, he opined that obesity more likely caused the Veteran's sleep apnea, and noted the connection between obesity and sleep apnea. He acknowledged that the two conditions may co-exist but restated that PTSD does not cause or aggravate sleep apnea. In a February 2021 private medical opinion, the physician opined that it is as likely as not the Veteran's sleep apnea was caused and aggravated by his medications prescribed for service-connected PTSD. She noted the Veteran's medical history and referenced medical studies regarding the connection between PTSD and sleep apnea. Further, she indicated that the October 2020 VA medical opinion did not address the Veteran's specific risk factors for upper airway collapsibility. Specifically, she discussed how frequent awakenings lead to fragmented sleep which make it not possible to proceed in normal sleep cycles. She also noted a medical study that compared the effects of sleep deprivation and fragmented sleep on upper airway collapsibility, which she indicated is the hallmark of sleep apnea. Further, the physician revealed that sleep fragmentation leads to higher upper airway collapsibility which can contribute to sleep apnea. Moreover, she noted that the Veteran's medications prescribed for his PTSD caused sedative properties that suppressed his central nervous system accompanied with a reduction in carbon monoxide. Therefore, sleep apnea caused passive and shallow breathing during sleep, as well as his prescribed medications for his PTSD, which could increase the risk for harmful respiratory events. The physician refuted the fact that the Veteran was obese. She noted the Veteran's weight would have rendered him overweight but not obese. Additionally, while being overweight could play a role in sleep apnea, he had significant risk factors for airway collapsibility with his medications prescribed for this PTSD and fragmented sleep. Therefore, she found the Veteran's sleep apnea was caused and aggravated by his PTSD and the medications taken for the condition. Resolving all reasonable doubt in favor of the Veteran, based on the findings of the February 2021 private opinion, the evidence is at least in equipoise that his obstructive sleep apnea was caused or aggravated by his service-connected PTSD, or the medications taken for such disability. Accordingly, the service connection claim for sleep apnea is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a headache disorder, to include as secondary to service-connected PTSD, is denied. Initially, the Board notes that the Veteran is currently service-connected for PTSD. It has been asserted that the Veteran had headaches that were directly connected to his service and secondary to his service-connected PTSD. The Veteran's service treatment records do not show the Veteran was treated for headaches. They do not contain complaints, treatment, or any diagnosis related to a headache condition. Overall, the medical records show very infrequent complaints of headache symptoms. VA treatment records show the Veteran has denied having headaches, including unusual and constant headaches. See e.g., October 2012 VA record. Although August 2011, November 2011, and October 2015 VA treatment records reveal the Veteran experienced headaches. However, a June 2015 record indicates he had a headache every so often that went away with Tylenol. Nevertheless, the Veteran was not formally diagnosed with a headache disorder. In an October 2020 VA examination, the examiner found the Veteran did not have an actual diagnosis of a headache disorder. There is no competent evidence of record to show that the Veteran has been diagnosed with a headache disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted above the medical evidence of record does not reflect a current diagnosis of a headache disorder, and no such diagnosis has been rendered at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran's service treatment nor the VA treatment records show a diagnosis of a headache disorder. There is no competent medical evidence that his headaches are a result of his active service, or service-connected PTSD. Moreover, while the Veteran is competent to report symptoms of disability, he is not shown to have the specialized medical training required to render a diagnosis for complex medical conditions such as a headache disorder. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the weight of the evidence is against a finding that the Veteran has a current diagnosis of a headache disorder. While the Board has considered Saunders in its decision, it is not applicable in this case. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). To the extent that the evidence of the record shows reports of headaches, a review of the record reveals that there is no function limitation accounted for by any headaches. Moreover, there are no allegations of impairment or manifestations relating to his headaches that are of the similar severity, frequency or duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1609. As such, Saunders and Wait are not applicable to this matter currently before the Board. Therefore, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for a headache disorder. The benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); See Gilbert, 1 Vet. App. at 54. TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following are evaluated 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. 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2019); 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 maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to March 15, 2016, is denied. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that entitlement to TDIU prior to March 15, 2016 is not warranted. The Veteran had already been granted TDIU effective from March 15, 2016. Prior to that date, he was service-connected for PTSD (50 percent), bilateral hearing loss (10 percent), and tinnitus (10 percent). His combined evaluation was 60 percent prior to March 15, 2016. He did not have a single service-connected disability rated at 60 percent, or two or more disabilities that rendered his combined rating at 70 percent. Therefore, prior to March 15, 2016, the Veteran did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is precluded from assigning TDIU on an extraschedular basis in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). The record reflects the Veteran had not worked since 2010 due to physical and mental impairments. A May 2013 VA examiner noted the Veteran's hearing loss and tinnitus had no impact on his ability to work. A May 2013 VA examiner noted the Veteran had trouble with jobs and his longest working job was sever years. A February 2014 VA examiner noted that the Veteran's PTSD moderately impaired his ability to perform work related tasks. However, the examiner found, essentially, that the Veteran's PTSD did not render it impossible for him to engage in substantially gainful occupation or render him unable to secure or follow substantially gainful occupation consistent with their levels of experience and education. The examiner noted that the Veteran also had multiple recent non- service medical conditions, to include recent kidney surgery and a colostomy bag. It was noted that the Veteran, while diagnosed with PTSD, had a productive work life for over 40 years after service. Thus, there was no unusual or exceptional disability picture observed during the examiner due solely to his PTSD. A March 2016 opinion noted there was medical literature that connected PTSD to unemployment and a poor work-related quality of life. She found the Veteran would have difficulty concentrating, and either be absent or leave work early three or more times per month. It wasn't until a May 2017 opinion that the Veteran was found to be unable to maintain substantially gainful employment due to his service-connected disabilities. (Continued on the next page) The Board acknowledges that prior to March 15, 2016, the Veteran may have experienced limitations with regard to certain occupations because of his service-connected PTSD. However, these limitations did not prevent the Veteran from securing and maintaining all forms of gainful employment. The Board notes that the examiners have stated that the Veteran would have difficulty at work, but none of the opinions prior to March 15, 2016, show the Veteran could not secure and maintain gainful employment. After careful review of the evidence, the Board concludes that this case does not present any unusual or exceptional circumstances that would warrant a referral to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b), prior to March 15, 2016. The Board notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm). The Board finds that the preponderance of the evidence is against the claim for a TDIU for the period prior to March 15, 2016 and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.