Citation Nr: 22019735 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 17-23 284 DATE: April 2, 2022 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) for the period from July 15, 2015 to June 8, 2017 is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against finding that obstructive sleep apnea had its onset during active service, is caused or aggravated by service-connected PTSD, or is otherwise related to active service. 2. The evidence persuasively weighs against finding that the Veteran was precluded from securing or following a substantially gainful occupation due to service-connected disabilities from July 15, 2015 to June 8, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a TDIU rating from July 15, 2015 to June 8, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1990 to June 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2015 by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska. This appeal was previously before the Board in February 2019 and January 2022, at which times it was remanded for further development. The Board finds there has been substantial compliance with its directives such that further appellate review is appropriate. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Service Connection Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD The Veteran asserts that his sleep apnea had its onset during service and/or is due to his service-connected PTSD. In his September 2016 Notice of Disagreement, the Veteran stated that he had great difficulties falling and staying asleep. He said that he would often go entire nights with little to no sleep. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. 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). Service connection may also be granted 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). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the claim for service connection for sleep apnea. The reasons follow. As to evidence of a current disability, a July 2020 VA examination report shows that the Veteran was diagnosed with obstructive sleep apnea. These facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records do not document a diagnosis or treatment of sleep apnea. Additionally, although the Veteran waived a separation examination in April 1997, a dental health questionnaire from May 1996 documents his denial of any physician's care; serious illness, operation, or hospitalization; or change in health in past two years; moreover, he did not indicate any relevant medical conditions or problems. Thus, as the evidence shows the Veteran did not develop sleep apnea during service, the Board finds the second element of a direct service-connection claim is not met. However, the Veteran has been granted service connection for various disabilities: PTSD with panic attacks, major depressive disorder, and alcohol dependence; right ankle fracture; left ankle fracture; tinnitus; left index finger laceration; and bilateral hearing loss. However, the evidence persuasively weighs against a nexus between the current sleep apnea and any of these service-connected disabilities. Post-service treatment records reflect that the Veteran was evaluated for sleep apnea in June 2015, which is more than 18 years following his service discharge, which does not lend to a finding of the onset of obstructive sleep apnea during service. In the Veteran attorney's September 2020 Remarks to Supplemental Statement of the Case, the attorney argued that sleep apnea can be present years before diagnosis, arguing that according to the International Journal of the Science and Practice of Sleep Medicine, the average time between recognition by the patient of a major feature of sleep apnea and referral to a sleep center is 87.5 months. Even if the Board took the argument by the Veteran's attorney into consideration, that would put the Veteran's possible recognition of a major feature of sleep apnea at 10 years following his service discharge. Again, the Board notes that does not lend to a finding of the onset of obstructive sleep apnea during service. In September 2015, the Veteran was afforded a VA examination to assess the current nature and etiology of his claimed sleep apnea. The examiner concluded that, after review of the claims file and the letter from the Veteran's wife, it was less likely than not that the Veteran's sleep apnea was incurred in or caused by his service. The examiner noted that the Veteran indicated that his symptoms of sleep apnea have been since service with loud snoring and disturbed sleep. He had a sleep study performed in 2015, diagnosed with sleep apnea, and prescribed a CPAP machine. In a February 2019 decision, the Board found the rationale insufficient as it appeared to be incomplete. Thus, the Board finds this as nonprobative evidence. An addendum VA opinion was obtained in July 2020. After the in-person examination, the examiner concluded that it was less likely than not that the Veteran's sleep apnea was incurred in or caused by his service. The examiner explained that the Veteran's records and history do not support his position that he developed obstructive sleep apnea while in service. The examiner stated that obstructive sleep apnea requires objective testing to separate it as a condition from other conditions that may mimic sleep apnea, or to separate it from normal snoring or other conditions that may interfere with sleep (such as insomnia or nightmares). The Veteran's sleep study was conducted in 2015, 21 years and approximately 70 additional pounds later. The examiner stated that the Veteran being male, aging, and his significant weight gain since service better supports that he developed obstructive sleep apnea a significant period of time after separating from service. The Board finds this opinion is probative evidence of no nexus between the obstructive sleep apnea and service. Another addendum VA opinion was obtained in January 2022. After a review of the Veteran's claims file, the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not proximately due to or the result of the Veteran's PTSD. The examiner stated that although there is significant overlap of some symptoms of PTSD or depression and sleep-related breathing conditions such as obstructive sleep apnea, one does not cause the other. The examiner noted that current medical literature does not support the argument that PTSD can cause obstructive sleep apnea. The examiner explained that the Veteran's records show that he has claimed symptoms of both sleep apnea and PTSD since being in service. While the two conditions can co-exist, one does not cause the other. In reviewing the Veteran's records, the examiner noted the records are clear in showing the Veteran had problems with insomnia, nightmares, and/or even the report of striking his girlfriend during sleep. The records show he wakes up a lot, sometimes to eat a snack, and this happens frequently. Additionally, the Veteran reported a pattern of partial compliance with his CPAP machine; however, a note in 2019 showed that he was not followed up or monitored for improvement since having the obstructive sleep apnea test. There were no notes showing any titration of CPAP, just the initial visit in 2015, which showed the Veteran snored and had mild to moderate obstructive sleep apnea. There is no evidence to support the Veteran developed obstructive sleep apnea from his service-connected PTSD. The examiner also found that the Veteran's obstructive sleep apnea was less likely than not aggravated beyond its natural progression by the Veteran's service-connected PTSD. The examiner stated that there was no evidence to support the Veteran's obstructive sleep apnea had worsened. The examiner found the Veteran does have documented sleep disturbances and his records were very specific for detailing a chronic problem with struggles to fall asleep, problems with sleeping only short periods at a time, non-compliance with CPAP use, and waking up to eat snacks. However, these sleep disturbances do not document evidence of obstructive sleep apnea. A review of the records shows he has problem mainly with insomnia and there is no evidence to suggest that the Veteran's mental health conditions, to include PTSD, panic attacks, depression, and alcohol dependence, have led to any increase in the Veteran's obstructive sleep apnea. Additionally, the examiner stated that there was no evidence to suggest his CPAP has had to be titrated up or no suggestion for any surgical procedure to help with the airway that would be an aggravation of his obstructive sleep apnea. The examiner said this would argue against any potential worsening in obstruction and sleep-related breathing. Additionally, the examiner noted that while the Veteran has aged almost 7 years from the date of the obstructive sleep apnea study, there is no evidence of any significant weight gain, his last weight showed the Veteran was 17 pounds lighter than when he was last tested for obstructive sleep apnea. The examiner said that some studies show that a loss of 10 to 15 percent of body weight can lead to a 50 percent reduction/improvement in sleep apnea. The examiner found that the available medical records show that his non-obstructive sleep apnea related problems with sleep have been consistent throughout the years and this, also, would argue against any potential worsening. While the examiner did not specifically use the word "aggravate" or "aggravated," the Board finds that the opinion is distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the U.S. Court of Appeals for Veterans Claims (Court) found that the examiner's opinion that it was "more likely than not that the veteran's alcohol abuse was related to factors other than the veteran's post-traumatic stress disorder" did not rule out the possibility that the veteran's service-connected posttraumatic stress disorder aggravated his alcohol abuse to some degree. Id. In contrast, here, the January 2022 examiner opined that there was no evidence to suggest that the Veteran's mental health conditions, to include PTSD, panic attacks, depression, and alcohol dependence, have led to any increase in the Veteran's obstructive sleep apnea. Because the examiner clearly opined that there was no medical relationship between the service-connected PTSD and the obstructive sleep apnea, the examiner's statement, unlike that of the examiner in El-Amin, rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected obstructive sleep apnea. Thus, the Board finds that the examiner's opinion addressed both causation and aggravation and is, therefore, probative regarding whether the service-connected disability aggravated the obstructive sleep apnea. In light of the VA examiner's discussion of medical principles, analysis of etiology, and review of the record and the Veteran's symptoms, the Board affords the July 2020 opinion the most probative evidence of record regarding the causal connection of the Veteran's obstructive sleep apnea and service. Additionally, the Board affords probative value and finds the opinion of the VA examiner who provided the January 2022 medical opinion to be the most probative evidence of record regarding the causal connection of the Veteran's obstructive sleep apnea and his service-connected disability. The examiner clearly considered all of the pertinent evidence of record, to include the Veteran's statements and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board has also considered the relevant lay evidence of record, including a June 2015 statement from the Veteran's common-law wife, V.F. She stated she has lived with the Veteran for 14 "tumultuous" years and that they have to sleep in separate bedrooms because the Veteran wakes up at least every hour and sometimes starts yelling in the middle of the night. She said that his snoring and gasping for air throughout the night is a big problem. She stated that their sleep arrangements have become a serious issue because his snoring is so loud that it almost shakes the walls, and she cannot sleep. Although the statement is probative insofar as V.F. reports observable symptoms, such as the Veteran snoring and gasping for air, to the extent that such statements assert that the Veteran's current obstructive sleep apnea had its onset during active service or his obstructive sleep apnea is secondary to a service-connected disability, such statements are not probative, as she is not competent to directly link the sleep apnea to service or a service-connected disability, as medical expertise is required. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Similarly, while the Veteran has alleged that his current obstructive sleep apnea is related to service or a service-connected disability, he is not competent to directly link the current obstructive sleep apnea to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Id. At the present time, there is no competent evidence of a nexus between the post-service obstructive sleep apnea and service or a service-connected disability to weight against the negative June 2020 and January 2022 VA opinions. For these reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for obstructive sleep apnea is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The claim is denied. TDIU Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from July 15, 2015 to June 8, 2017 Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has alleged that although he was working full time during the period on appeal, he became too disabled to work on June 9, 2017 due to his service-connected disabilities. For the period from July 15, 2015 to June 8, 2017, service connection was in effect for for PTSD with major depressive disorder and alcohol dependence, rated as 70 percent disabling; right ankle fracture, rated at 10 percent; left ankle fracture, also 10 percent; and a left index finger laceration, bilateral hearing loss, and tinnitus, each rated as noncompensable. Based upon the above, the Veteran's combined disability rating during the relevant appeal period is 80 percent. As such, the Veteran's service-connected disabilities meet the schedular criteria for TDIU consideration for this period. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). 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 age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In a September 2016 Notice of Disagreement, the Veteran stated that his medical conditions substantially impaired his ability to safely and efficiently carry out his job performances. He stated that he suffered from severe bouts of anxiety, depression, diabetes, PTSD, alcohol dependence, sleep apnea, and an enlarged pancreas; all of which have caused him to miss significant amounts of time from work. The above discussion of the Veteran's service-connection claim is incorporated herein to the extent relevant. The Board has carefully reviewed the evidence of record and finds that the evidence weighs against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The reasons follow. As to the Veteran's physical disabilities, the Veteran is service connected for a bilateral ankle disability, bilateral hearing loss, tinnitus and left index finger laceration. On VA examination in 2012, the Veteran reported constant pain in his ankles and limited function due to pain, stiffness, and decreased range of motion. As to functional impact on the Veteran's ability to work, the examiner stated that the Veteran's bilateral ankle disability impacted him as he has trouble standing for prolonged periods as a postman and needed to take sick leave at times of exacerbation of his disability. The record does not reflect that the Veteran had a functional limitation due to his left index finger laceration. The Board notes that the Veteran has maintained his employment and was promoted to manager in 2016. These disabilities have not required recurrent and ongoing treatment, and the Veteran has not had acute exacerbations of this condition requiring inpatient or urgent care. Regarding the Veteran's hearing loss and tinnitus, during VA examination in 2012, the Veteran reported that he has difficulty hearing in noise due to his bilateral hearing loss. Additionally, he reported that the tinnitus affects his ability to concentrate on daily tasks and sleep. However, the record does not show that the Veteran has required treatment for these disabilities during the relevant period or that they disrupt the Veteran's routine activities or his ability to follow substantially gainful employment. Treatment records do not reflect communicative or functional deficits relating to his hearing loss and tinnitus. As to the Veteran's mental disabilities, the Veteran is service connected for PTSD with major depressive disorder and alcohol dependence. On VA examination in 2015, the Veteran reported that he had numerous problems at work, including being suspended and fired, but was hired back. He reported that he had been depressed and not able to get up to do anything. He also stated that he has been irritable and argued with his boss and was sent home. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. At a July 2016 private psychiatric evaluation, that the Veteran has been treated for depression and PTSD for several years and he was promoted to manager recently and it has been worse. In the 2017 VA examination, the Veteran reported poor relations with his supervisor and co-workers. He said he was uncertain as to why he could not get along with others. The claimant reported significant disciplinary problems, including five complaints filed against him by people that he supervises. The Veteran described his overall job performance as "lacking," and his attendance lately had been sporadic. He noted that he received leave through Family and Medical Leave Act related to his diabetes. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. While the Veteran experienced difficulties due to his PTSD symptoms, the Board again notes that the Veteran was able to follow substantially gainful employment throughout the appeal period and be promoted to a manager. Regarding the Veteran's education, training, skills, and work history, the Veteran's TDIU application shows that the Veteran completed one year of college. The Veteran's TDIU application stated he was employed at the United States Postal Service since 1998. Additionally, he served as a supervisor from 2013 until 2016 and then a manager from 2016 to his retirement on June 9, 2017. The Veteran's work history and educational achievements demonstrate a capacity for learning and training that are not demonstrated to be hindered by his service-connected disabilities. This is strong probative evidence against the Veteran's claim for TDIU during this appeal period. He has not required inpatient or urgent treatment and has maintained independence in his activities of daily living. Despite the Veteran's continued psychiatric symptoms, the evidence of record does not show a significant decrease in the Veteran's overall functioning during this period on appeal to suggest that he was not capable of obtaining and sustaining substantially gainful employment during this appeal period. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences some symptoms of pain, primarily associated with his bilateral ankle disabilities. However, these have not resulted in significant functional limitations that would preclude employment. The Veteran's conditions have been treated conservatively and he has not required urgent or inpatient treatment. The Veteran has maintained independence in his activities of daily living, and his physical disabilities did not impede the Veteran's work at the United States Postal Service during the relevant timeframe. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran experiences a range of psychiatric symptoms associated with PTSD. These symptoms have predominantly resulted in depressed mood, anxiety, suicidal ideations, suspiciousness, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships. However, the evidence predominantly shows the Veteran to be alert and oriented, intact concentration, memory, judgment, and insight. The Veteran has routinely exhibited appropriate and cooperative behavior. The Veteran has been able to maintain employment, even in a field that required interaction with the public despite his psychiatric symptoms. Accordingly, the evidence supports a finding that the Veteran is capable of occupations that do not require work in crowds or routine face-to-face interaction with the general public, so as to avoid potential symptom exacerbations. As such limitations would not preclude all forms of substantially gainful employment, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment from July 15, 2015 to June 8, 2017. For example, the evidence weighs against a finding that the Veteran's service-connected disabilities precluded him from continuing his employment through the United States Postal Service during the relevant timeframe. See Geib, supra (the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator). The Veteran managed to maintain full-time employment during the period in question, which weighs significantly against a finding that he was precluded from substantially gainful employment due to his service-connected disabilities. Id. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to TDIU from July 15, 2015 to June 8, 2017 is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, supra. The claim is denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.