Citation Nr: 21039696 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-13 000 DATE: July 1, 2021 ORDER Entitlement to a 30 percent rating for obstructive sleep apnea from December 1, 2013 to July 8, 2014 is granted. FINDING OF FACT Prior to July 8, 2014, the Veteran's obstructive sleep apnea symptoms more nearly approximated the criteria for 30 percent disabling. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating for obstructive sleep apnea from December 1, 2013 to July 8, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97 Diagnostic Code 6847. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from August 1987 to December 1987, and from May 1992 to November 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from the May 2014 rating decision granted service connection for obstructive sleep apnea with a noncompensable rating effective December 1, 2013; and June 2015 rating decision denying service connection for bone fractures of the left big toe issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that during the pendency of this appeal, in an August 2020 rating decision, entitlement to service connection for bone fractures of the left big toe was granted with an evaluation of 10 percent effective March 26, 2015. The Veteran has not appealed the initial awarded effective date or disability rating. That claim is therefore resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board also notes an increased rating of 50 percent was granted effective July 8, 2014 for the Veteran's sleep apnea in a March 2016 rating decision. However, the Veteran has appealed the initial noncompensable rating his service-connected sleep apnea; therefore, the issue is still before the Board. Higher Initial Rating Initial ratings represent the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. One is assigned under the Rating Schedule by comparing the extent a disability impairs the ability to function with the criteria for that disability. Id.; 38 C.F.R. § 4.10. The disability's history and all other relevant evidence is to be considered and, if necessary, reconciled. 38 C.F.R. §§ 4.1, 4.2, 4.6. When two initial ratings may be applicable, the higher is assigned if its criteria are more nearly approximated. 38 C.F.R. § 4.7. Any reasonable doubt in that regard is resolved in the claimant's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Different initial ratings may be assigned for different periods, which is known as staging. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to a 30 percent rating for sleep apnea from December 1, 2013 to July 8, 2014 As previously noted, the Veteran's sleep apnea has been assigned a noncompensable disability rating under 38 C.F.R. § 4.97, Diagnostic Code 6847 from December 1, 2013 to July 8, 2014. Under Diagnostic Code 6847, a noncompensable evaluation is assigned for asymptomatic sleep apnea with documented sleep disorder breathing. A 30 percent evaluation is assigned for sleep apnea with persistent day-time hypersomnolence. A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. A review of the service treatment records (STRs) reflect that in July 2013, the Veteran was referred to sleep disorders clinic after requesting a sleep study for very loud snoring, lack of sleep due to snoring, and dry mouth. In September 2013, the Veteran reported snoring, waking with dry mouth, and difficulty sleeping. Additionally, he reported some sleep initiation insomnia 3 to 4 times a week, interrupted sleep, difficulty falling asleep, and feeling sleepy during the day but with no involuntary sleep. The examiner noted that the Veteran did not have significant daytime sleepiness. The Veteran was advised to avoid driving while excessively sleepy and to nap if sleepiness develops. In October 2013, the Veteran underwent a polysomnogram and was diagnosed with obstructive sleep apnea. In November 2013, the Veteran was notified of the results of the October 2013 polysomnogram. The examiner noted that options for mild sleep apnea were discussed since the Veteran did not report a history of daytime sleepiness. In April 2014, the Veteran underwent a VA sleep apnea examination. He reported loud snoring and occasional sleepiness during the day. In July 2014, the Veteran reported having frequent awakenings averaging 4 to 5 per night, feeling sleepy after lunch, and sometimes sleepiness while driving. The Board notes, aside from the November 2013 notation that the Veteran did not report a history of daytime sleepiness, the evidence clearly shows that he continually reported daytime sleepiness. Although the Veteran's daytime sleepiness was not described or reported as excessive or significant, he was advised to not drive while excessively sleepy and to take naps. As these symptoms are not contemplated by the zero percent criteria, the Board finds that these symptoms more nearly approximate the 30 percent criteria. See 38 C.F.R. § 4.7. Therefore, the Veteran's claim for a 30 percent rating for obstructive sleep apnea from December 1, 2013 to July 8, 2014 is granted. As the Veteran's sleep apnea did not require use of breathing assistance device such as CPAP machine prior to July 8, 2014, a rating in excess of 30 percent is not warranted. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel 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.