Citation Nr: 21029501 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-39 184 DATE: May 13, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to an initial disability rating higher than 20 percent for a back disability prior to May 15, 2019, and a rating higher than 40 percent thereafter, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. There is no competent evidence of record of CFS. 2. Prior to May 15, 2019, the Veteran's service-connected back disability was not shown to be manifest by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks, or associated neurological impairment, other than the separately rated right lower extremity radiculopathy that is not on appeal. 3. From May 15, 2019, the Veteran's back disability is shown to have been functionally limited to 30 degrees or less; but unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks, or associated neurological impairment, other than the separately rated right lower extremity radiculopathy that is not on appeal, have not been shown. 4. Resolving all doubt in the Veteran's favor, the probative evidence of record supports a finding that the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for CFS have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for a rating higher than 20 percent for a lumbar spine disability prior to May 15, 2019, and a rating higher than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. 3. The criteria for entitlement to a TDIU have 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 on active duty from May 1982 to January 1989. In December 2018, the Board remanded the appeal for additional development. The Board notes that the appeal had also originally included claims for service connection for fibromyalgia, gastroesophageal reflux disorder (GERD) and erectile dysfunction (ED). However, the Agency of Original Jurisdiction (AOJ) granted that claims in a July 2020 rating decision. As a result, the Board does not have jurisdiction over downstream issues, and thus any such issues are not a part of the current appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for CFS The Veteran contends that he has CFS that began in service or is caused or aggravated by low back problems, fibromyalgia, and psychiatric problems. The Veteran's service treatment records fail to document any findings consistent with a diagnosis of CFS. After service, treatment records reflect the Veteran's belief that he has CFS, but his treating physicians have not clearly indicated whether he has CFS. The Veteran was examined in July 2019. The Veteran stated that he had started feeling very tired over time after he got diagnosed with depression and some mental health issues. He reported that his symptoms had progressed and he had been waking up feeling tired and fatigued. Following a review of the evidence and an examination of the Veteran, the examiner indicated that he was unable to find any objective evidence or history of treatment to support a diagnosis of CFS. Accordingly, the examiner opined that the claimed disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In an addendum opinion report in October 2020, following a review of the claims file, a VA examiner noted the Veteran's reported history of headaches and back pain while on active duty. These were nonspecific common complaints that did not necessarily represent a diagnosis of CFS. Therefore, the examiner opined that the claimed disorder was less likely than not caused or aggravated by service or a service-connected disability. While treatment records contain complaints of fatigue, the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has been diagnosed with CFS. Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.:). See, too, Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). The Board has considered the Veteran's reported history of symptomatology throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465 (1994); See Buchanan, 451 F.3d at 1337. In this case, however, his statements do not rise to a level of competency to offer an opinion as to the existence of a current diagnosis or etiology. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Additionally, determining the etiology of claimed CFS requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have training, expertise, or skills needed to make such a determination. As a result, the probative value of his lay assertions is low. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. §§ 5107 (b); Gilbert, supra. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 2. Entitlement to higher disability ratings for a back disability Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. On VA examination in December 2012, the examiner noted diagnoses of degenerative arthritis of the spine and lumbar spondylosis, along with lower lumbar spine pain radiating to the right leg. He described the pain as 8/10 in intensity. The pain was exacerbated by prolonged standing or bending and twisting. It was relieved by standing and leaning forward. He denied bowel or bladder incontinence. The Veteran was treated with medication. The Veteran endorsed flare-ups with movement lasting 2 or 3 minutes. He rated the pain as 10/10 during flare-ups. Reportedly, flare-ups were productive of inability to move. Examination showed forward flexion to 50 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, left lateral rotation to 30 degrees. There was no additional loss of function or range of motion after three repetitions. There was no pain noted on examination or on weight bearing. The examiner noted mild tenderness over the lumbar spine area. Strength was normal and there was no muscle atrophy. Reflexes were 2+. Sensory examination was reduced in the right lower extremity. The examiner noted mild to moderate radiculopathy on the right lower extremity affecting the sciatic nerve. There was no ankylosis or IVDS. VA treatment notes in November 2015, recorded complaints of increasing lower back pain with radiation into his right lower extremity. The clinician noted significant guarding and reluctance to move in any direction. Flexion was to 40 degrees, extension was to 20 degrees and lateral rotation was 20 degrees. He was able to support himself on his toes and heels of both lower extremities. Deep tendon reflexes were physiologic. Straight leg test was positive on the right. There was no apparent weakness of lower extremities. August 205 x-rays showed degenerative changes involving primarily L4-5, and to a greater degree at L5-S1. A VA examiner in May 2019, noted a diagnosis of IVDS as a progression of his back condition due to compression and irritation on his spinal nerve. The Veteran endorsed flare-ups characterized by severe pain. During flare-ups, he was unable to barely get out of bed, stand or walk for a long time. Forward flexion was to 30 degrees during flare-ups and with repeated use over time. Muscle strength was normal and there was no muscle atrophy. Sensory examination was normal. Straight leg raise test was negative, bilaterally. The examiner noted mild to moderate pain in the right lower extremity affecting the sciatic nerve. No other symptoms of radiculopathy were reported. The examiner described mild right lower extremity radiculopathy. No other neurological abnormalities were identified. There was no ankylosis. There were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Occupationally, the Veteran was unable to stand or walk for a long time. There was objective evidence of pain on passive range of motion testing of the back. There was no evidence of pain on non-weight bearing testing of the back. Initially, the Board notes that while the Veteran was diagnosed with IVDS in May 2019, throughout the period on appeal, there is no evidence of incapacitating episodes. Additionally, none of the VA treatment records treatment records show incapacitating episodes as defined by VA regulation. As such, the Veteran does not satisfy the criteria for an increased rating under Diagnostic Code 5243 for IVDS because the record does not show documented periods of acute signs and symptoms of IVDS that required bed rest prescribed by a physician and treatment by a physician. Accordingly, the Board finds that he is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. The Board finds that prior to May 15, 2019, the Veteran is not entitled to a rating in excess of 20 percent. To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.71a. During this period, the only recorded range of motion findings show the Veteran's flexion was no worse than to 40 degrees with pain. Considering all the evidence of record, including range of motion testing results, the evidence that prior to May 15, 2019, weighs against a finding of forward flexion limited to 30 degrees or less, even considering with repetition or during flare-ups. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, there is no evidence of ankylosis of the thoracolumbar spine. Therefore, the Board finds that prior to May 15, 2019 a rating in excess of 20 percent is not warranted. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5235-5242. Effective May 15, 2019, the Veteran's back disability was evaluated as 40 percent disabling. In order to warrant a rating higher than 40 percent for the lumbar spine disability under the General Rating Formula, the evidence must show unfavorable ankylosis of the thoracolumbar spine. As the evidence shows the Veteran has movement in his thoracolumbar spine, it follows that the thoracolumbar spine is not ankylosed. Consistent with this finding, the VA examiner in May 2019 found no objective evidence of ankylosis of the spine. Therefore, the Board finds that the criterion for the next higher rating based on limitation of motion and orthopedic manifestations under the General Rating Formula has not been shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran is already in receipt of a separate rating for right lower extremity radiculopathy and that issue is not presently before the Board. Thus, the question is whether the Veteran has other associated neurological abnormalities associated with his back disability. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment, bowel impairment or other neurological impairment as a result of his service-connected back disorder, and the VA examiners specifically found no neurologic impairment associated with the back, other than the separately rated radiculopathy that is not on appeal. For this reason, additional separate ratings for objective neurological abnormalities were not warranted at any time during the period on appeal. The Board finds that a disability rating higher than 20 percent for a back disability prior to May 15, 2019, and a rating higher than 40 percent thereafter, are not warranted. The Board finds that the preponderance of the evidence is against the assignment of any ratings higher than those assigned. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining gainful employment. In order to establish a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, service connection is currently in effect for: Headaches, evaluated as 30% disabling prior to April 5, 2016, and 50% thereafter; Low back disability, evaluated as 20% disabling prior to May 15, 2019, and 40% thereafter; A psychiatric disorder, evaluated as 30% disabling; Right lower extremity radiculopathy, evaluated as 20% disabling; Fibromyalgia, evaluated as 20% disabling; GERD, evaluated as 10% disabling; and Erectile dysfunction, evaluated as 0 % disabling. Thus, the Veteran meets the minimum threshold for consideration of a schedular TDIU. Id. The Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, upon which he reported that was last gainfully employed, apparently full time, as a security guard, in September 2007. The evidence shows that the Veteran owned a security company and sold it in 2007. He reported having completed two years of college and he also had privacy security training. Concerning the Veteran's headaches, a VA examiner in December 2014 determined that the Veteran's headache condition impacted his ability to work because it interfered with his ability to concentrate and focus, and occasionally blurred his vision. In an April 2016 headaches Disability Benefits Questionnaire (DBQ), a private clinician, Dr. H.S., noted that the Veteran experienced daily headaches with frequent prostrating headaches productive of nausea, occasional vomiting, light and sound sensitivity, as well as reduced concentration. Due to his headache disorder, the Veteran would miss several days of work and require frequent unscheduled breaks throughout the workday. A VA examiner in December 2014, opined that the Veteran's back disability was productive of occupational impairment as he experienced trouble with prolonged sitting over 2 or 3 minutes, standing or walking over 10 minutes. In May 2019, a VA examiner indicated that the Veteran's back disability interfered with his ability to work in a capacity that required prolonged standing or walking. In a January 2016 headaches mental disorder DBQ, a private psychologist, Dr. H.H.G., opined that the Veteran's psychiatric disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and or judgment. Dr. H.H.G. added that due to the Veteran's anxiety, he could not sustain stress from a competitive work environment. A VA examiner in May 2019, opined that the Veteran's fibromyalgia rendered him unable to stand or walk for more than 15 minutes without requiring assistance. On VA examination in December 2014, the Veteran reported that he stopped working as a mechanic and security officer in 2007 because all his chest discomfort due to GERD. A VA examiner in May 2019, opined that the Veteran's erectile dysfunction and GERD did not impact his ability to work. In support of his claim, in February 2021, the Veteran submitted a private vocational evaluation report. The vocational consultant, S.B., opined that the Veteran was unable to perform his prior work in security due to the physical and mental limitations from his service-connected impairments. S.B. indicated that the Veteran was unable to meet the demands of medium exertion required by the corrections officer position. He was unable to meet the demands of light work as a security supervisor and company owner due to his inability to sit, stand or walk more than 10 minutes at one time. The Veteran was unable to sufficiently concentrate to perform the semi-skilled and skilled work demands. He was not capable of attending work regularly due to the physical pain resulting from his service-connected physical disabilities. S.B. indicated that the Veteran was incapable of meeting full-time work demands for sustained activity from either a mental or physical perspective. Based on the totality of the evidence, S.B. opined that the Veteran was totally occupationally disabled from all competitive employment due to his service connected tension headaches, his psychiatric disorder, right lower extremity radiculopathy, fibromyalgia, GERD and erectile dysfunction. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that "applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner."). The Board finds that, the evidence is in equipoise as to whether the combination of the Veteran's service-connected psychiatric and physical disabilities, with consideration of the Veteran's employment history and his educational background, would more likely than not preclude him from securing or following a substantially gainful occupation. Therefore, a TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for obstructive sleep apnea (OSA) as secondary to his service-connected psychiatric disorder. In a March 2017 OSA DBQ, Dr. H.S. noted the Veteran's report that he was unable to use his prescribed CPAP to treat his OSA, due to anxiety and panic attacks because the use of the CPAP made him feel claustrophobic. Accordingly, Dr. H.S. opined that the Veteran's OSA was at least as likely as not caused and aggravated by his psychiatric disability. The Board finds that Dr. H.S.'s opinion does not contain sufficient explanation or medical rationale to support an award of service connection for sleep apnea on a secondary basis because while it may be true that the Veteran's claustrophobic symptoms interfere with his use of the CPAP machine, Dr. H.S. does not indicate how, from a medical perspective, this impediment aggravates the underlying sleep apnea disability, as opposed to simply aggravating symptoms when a CPAP is not used. Pursuant to the Board's December 2018 remand directives, the Veteran was afforded a VA examination in May 2019. The VA examiner opined that the Veteran's sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, because there was no evidence indicative of sleep apnea during in service. In an addendum opinion report in October 2020, a VA examiner opined that sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness and/or proximately due to or the result of his service connected condition. The examiner explained that there was no evidence documenting depression as a cause of the Veteran's sleep apnea. The examiner cited to medical literature in finding no secondary nexus, but failed to discuss the Veteran's lay statements of how he feels claustrophobic when placing the CPAP mask on his face. The examiner also failed to address the aggravation element of secondary service connection. Therefore, the Board finds that this issue needs to be remanded to obtain a medical opinion addressing whether the Veteran's sleep apnea is caused or aggravated by psychiatric disability, to specifically include an inability to tolerate his CPAP machine as due to claustrophobic feelings. See 38 U.S.C.§ 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In light of the TDIU finding, the Veteran, in consultation with his representative, may wish to consider withdrawing the claim. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran and/or his representative should submit any new pertinent evidence himself. 3. Submit the claims file to the October 2020 VA examiner, if available, for an addendum opinion. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. The examiner is asked to determine whether it is at least as likely as not (a probability of 50 percent or greater) that sleep apnea is caused and/or aggravated by a service-connected disability, to include his psychiatric disorder. Please explain why or why not. The examiner is asked to consider the Veteran's reported difficulties using his prescribed CPAP due to mental health symptoms, including claustrophobia. In rendering the opinion, the examiner is asked to address the March 2017 OSA DBQ, Dr. H.S. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.