Citation Nr: 22018762 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-10 536A DATE: March 30, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran's OSA was caused by or incurred in military service, to include any relationship to service connected disabilities. 2. Throughout the period of appeal, the Veteran's service-connected disabilities have not been shown to render the Veteran unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.104, 3.310. 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the VA Regional Office (RO). The Veteran was previously provided with a hearing before a Veterans Law Judge who has since retired from the Board. The Veteran was provided an opportunity to have a new hearing, but declined to do so. A copy of the prior transcript is of record and has been reviewed accordingly. This case was previously before the board in March 2019, August 2020, June 2021, and September 2021. The prior remand directives have been found to be in substantial compliance and the claims are now ready for adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the balance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he currently suffers from OSA that is the result of military service. In this regard, the Veteran has attributed this condition to his inability to sleep properly during military service due to proximity to loud artillery noise as well as his service-connected tinnitus. He has also attributed this condition to his service-connected hypertension. The Veteran has provided lay statements to the effect that he first began experiencing OSA during service as roommates and fellow servicemembers told him that he snored. However, there has been no corroboration from sources other than the Veteran's own subjective history. The Veteran's wife also provided a lay statement indicating that she has observed his OSA since around 1979 to 1980, nearly 14 years after leaving military service. She did not further confirm that the Veteran began experiencing these symptoms in the miliary. A review of the Veteran's service treatment records is negative for any showing of complaints, treatment, or diagnoses of OSA. These records include the entrance and exit examinations as well as treatment for disorders other than OSA, including a rash, foot callus, urethral discharge, finger complaints, blisters, a laceration, and abdominal cramps. Given this pattern of behaviour, the Board finds that had the Veteran experienced symptoms of OSA in service, he would have presented for treatment of it, as he did for other ailments. As he did not, the Board finds this is evidence against the claim he had symptoms of it in service. . A review of the Veteran's post-service outpatient treatment records reveals that he has been treated for complaints of and diagnosed with OSA since February 2010. No earlier reference to this condition has been found in the Veteran's available post-service treatment, which begins in the early 1980s and goes to present. Generally, etiology has not been discussed in these records, but a May 2010 record appeared to indicate that the Veteran's sleep disturbance was the result of tinnitus. In this regard, the medical provider did not appear to explicitly state that OSA as currently diagnosed was caused by tinnitus, but rather the tinnitus made it difficult for the Veteran to sleep during service. There was no retroactive diagnosis of OSA in service in that regard. The veteran was provided with a VA examination in July 2010. The examiner diagnosed the Veteran with OSA. It was opined that the condition was less likely than not caused by or incurred in military service due to the lack of in-service treatment and many years of no treatment until first diagnosis in 2010. The Veteran was provided with an additional VA examination in April 2019 and addendum opinion in May 2020. The examiner diagnosed the Veteran with OSA. It was opined that the condition was less likely than not caused by or incurred in military service due to the lack of in-service treatment and many years of no treatment until first diagnosis in 2010. Additionally, it was opined that the condition was less likely caused by or aggravated by service-connected tinnitus and/or hypertension as the established medical knowledge and literature did not demonstrate any association between these disorders. The Veteran provided citations to various articles which generally discussed the higher prevalence of OSA in patients with pre-existing conditions such as tinnitus. These articles were reviewed by VA examiners in February 2021 and July 2021 and found to be inapplicable to the particular facts of the Veteran's case. Most notably, it was found that the presence of tinnitus did not cause OSA, but rather appeared in a higher association with OSA patients. Nonetheless, the Veteran's medical history did not demonstrate that his onset of tinnitus in service occurred in tandem with his OSA, as the latter appeared to develop many decades later and was not a sufficient indicator of the development of such in his case as opposed to the examples provided in the cited case studies. An additional VA examination opinion was provided in November 2021. The Veteran was diagnosed with OSA. It was opined that this condition was less likely than not caused by or incurred in military service due to the lack of treatment in service as well as consideration of his lay statements of in-service onset. Having reviewed the complete record, the Board finds that service connection for a OSA is not warranted. The record appears to show the current presence of this disability, however, there is no indication of any in-service events, injuries, or diseases upon which to base direct service connection. Here, the Veteran's service treatment records do not show that he was treated for or diagnosed to have any complaints of OSA during military service. The only evidence of any in-service incurrence or onset in this regard is the Veteran's own statements. Although he is competent to report on subjective and observable symptoms such as sleep trouble and snoring, he is not shown to possess the medical competence to be able to diagnose those symptoms as OSA in service. Additionally, his allegations of experiencing those symptoms since military service are not credible, as he did not bring them to the attention of medical providers for almost half a century, despite being seen regularly for a myriad of other disorders. Despite the lack of an in-service event, injury, or disease, VA still obtained nexus opinions, which were provided by competent medical professionals and determined that the established medical science would dictate that, had the Veteran's OSA began in military service, there would have been evidence in the medical record from that time to present. Therefore, due to the lack in-service injuries, or diseases to which OSA could relate, or probative evidence of a nexus between OSA and service, the Veteran's claim on a direct basis is not warranted. Turning to the issue of secondary service connection, the Veteran does have service-connected disabilities of tinnitus and hypertension upon which to base this link. However, in this regard, the probative medical evidence of record has not established a nexus. The VA examiners found that the established medical research and literature did not show a correlation between OSA and tinnitus or hypertension. Although a 2010 private medical opinion appeared to suggest a relationship to tinnitus, it was only within the context of its effect on the Veteran's sleep generally and not as causing the respiratory condition that form the basis of his OSA specifically. Additionally, the articles provided by the Veteran showing a correlation between OSA and tinnitus were again more generalized findings and, upon review by the VA examiners who were looking at the Veteran's specific medical findings, were found to be inapplicable to the instant facts and circumstances. Thus, the only remaining argument against the VA examiners' findings is the contentions of the Veteran. The Veteran's statements to the effect that there is a relationship between his OSA, and service-connected disabilities are lacking in probative value, as he has not been shown to have the requisite training or knowledge to offer such as opinion. As such, service connection on a secondary basis is also not warranted. For the reasons provided above, the evidence is against the Veteran's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. TDIU Following a careful review of the record, the Board finds that the weight of the evidence is against the claim for a TDIU. A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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 disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. At the outset, it is noted that the Veteran's TDIU claim was made in September 2011. During the period on appeal, the Veteran's service-connected disabilities included renal insufficiency with hypertension (rated 60 percent from May 19, 2010), hypertension (rated at 10 percent from June 26, 1986 to March 1, 2014), tinnitus (10 percent from March 31, 2003), and bilateral hearing loss and sexual dysfunction (rated noncompensable). Thus, throughout the period of appeal, the Veteran does meet the TDIU criteria pursuant to 38 C.F.R. § 4.16 (a). In a September 2011 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran said that he became too disabled to work full time in January 2011, due to cramping in his hands and bad knees. He said he had been working since 2000 as a general contractor. He reported that he completed high school and had some college. He further indicated that he was too old to continue working. In a March 2012 VA Form 21-8940, the Veteran said that he became too disabled to work in January 2012, due to nephritis and tinnitus. He indicated that he had been working as a self-employed handy man. In a July 2013 VA Form 21-8940, the Veteran said that he became too disabled to work in December 2007due to service connected disabilities and OSA. This is despite the fact that he had previously reported working until January 2012. He indicated that he had been working as an independent distributer. During the period on appeal, the Veteran's outpatient treatment records generally indicate that the Veteran's service-connected disabilities warranted regular treatment, but there were no findings suggestive that the Veteran was not employable due to these conditions either individually or collectively. July 2010 VA examinations for the Veteran's bilateral hearing loss, tinnitus, renal insufficiency, hypertension, and erectile dysfunction. found that this condition did not affect occupation and activities of daily living, with exception of difficulties hearing without hearing aids that he generally wore. October 2012 and November 2012 VA examinations for the Veteran's bilateral hearing loss, tinnitus, renal insufficiency, hypertension, and erectile dysfunction. found that this condition did not affect occupation and activities of daily living, with exception of difficulties hearing without hearing aids that he generally wore and increased fatigue when doing significant physical activities like yardwork. June 2014 VA examinations for the Veteran's bilateral hearing loss, tinnitus, renal insufficiency, hypertension, and erectile dysfunction. found that this condition did not affect occupation and activities of daily living, with exception of difficulties hearing without hearing aids that he generally wore. October 2021 and November 2021 VA examinations for the Veteran's renal insufficiency, hypertension, and erectile dysfunction. found that this condition did not affect occupation and activities of daily living. The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Evidence shows the Veteran was unemployed during this period, but the most probative evidence does not show this was due to his service-connected disabilities. In fact, his first VA Form 8940 appeared to indicated that he became unemployable due to non service-connected disabilities including his hands and knees. Additionally, it appears he may have continued working until January 2012. Notwithstanding any discrepancies in his listed work history, it still does not appear that any such inability to work was related to his service-connected disabilities. While the Board does not doubt that the Veteran's service-connected disabilities have an effect on his employability, the weight of the evidence does not present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. While VA examinations held for the Veteran's disabilities noted that the audiological disabilities and heart disability could make his work difficult, they did not reveal gainful employment was precluded. Additionally, it appears that the renal insufficiency could cause fatigue, but there was also no indication that this would totally preclude all forms of employment, including the Veteran's regular occupation as an independent contractor. The Board does not doubt that the Veteran's disabilities cause him pain and inconvenience as described in the examinations. However, it is clear that these disabilities are not so severe as to preclude all forms of gainful employment. For his part, the Veteran has not identified or submitted any other evidence demonstrating his entitlement to a TDIU or why specifically he would be no longer suited to work in a similar employment setting. Loss of industrial capacity is the principal factor in assigning schedular disability ratings, and the Board believes that the symptomatology associated with the Veteran's service-connected disabilities are appropriately compensated at the levels currently assigned. As the Veteran has not otherwise identified or submitted any evidence demonstrating his entitlement to a TDIU under the circumstances of this case, entitlement to TDIU benefits is not shown during this time period. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.